New Jersey Employment Lawyer Blog
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New regulations issued by the United States Department of Labor (DOL) make it clear that the Family & Medical Leave Act (FMLA) protects spouses in same sex marriages.

same-sex marriage protected under FMLAThe FMLA is a federal law which, among other things, guarantees covered employees can take up to 12 weeks per year off from work to care for their own serious health condition, a serious health condition of a member of their immediate family, or for pregnancy, childbirth or adoption. To be covered, an employee must have worked for the employer for at least 12 months, worked at least 1,250 hours for the employer during the previous 12 months, and worked at a location at which the employer has at least 50 employees within a 75 mile radius.

The FMLA defines “immediate family” to include a parent, child or spouse. However, until last year’s Supreme Court decision in United States v. Windsor, the federal government did not recognize same sex marriages. Therefore, the FMLA did not protect employees in same sex marriages to the same extent it protects employees in opposite sex marriages. The new regulations are intended to correct this problem.

For instance, the new regulations make it clear that the term “spouse” includes partners in same sex marriages. Specifically, it includes (1) any individual who is considered married under the law of the State in which the marriage was entered into, and (2) any individual who is married outside of the United States if the marriage is recognized both in the country in which the marriage took place and in at least one State.

In addition to expanding the definition of spouse, the new regulations make it clear that irrespective of whether they are the same or opposite sex, both parents are entitled to take FMLA leave for the birth or adoption of their child, and to bond with their newborn child during the first year after birth. The previous version of the regulations referred to these rights belonging to the “mother” and “father,” terms that assumed a marriage is only be between a man and a woman.

Likewise, the new regulations make it clear that a spouse of either gender is entitled to take time off to care for his or her pregnant spouse who is incapacitated, providing prenatal care, or has a serious health condition following childbirth. Previously, the regulations only gave this right to the “husband” on the assumption that the spouse who is not pregnant would be a man.

Numerous other provisions of the FMLA regulations were revised to be consistent with same sex couples. For example, previous rights of “the mother” were changed to be rights of the “expectant mother” in recognition that marriages can have two mothers, and the rights in question belong to the mother who is pregnant. These rights include time off due to incapacity as a result of pregnancy, for prenatal care, or for the expectant mother’s own serious health condition following childbirth.

These new regulations are scheduled to go into effect on March 27, 2015.

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A recent employment law case recognizes that in certain circumstances, an employer does not violate federal law if it requires former employees to sign away their legal claims against it as a condition to rehiring them as independent contractors.

In 1999, Allstate Insurance Company decided to treat all of its sales agents as independent contractors. Accordingly, that November Allstate fired 6,200 sales agents and gave them four options: (1) return to work as an independent contractor and receive a $5,000 bonus and other benefits; (2) receive $5,000 and the right to sell the employee’s Allstate account in September 2000; (3) receive 12 months of “enhance severance” pay; or (4) receive 13 weeks of ordinary severance pay.

To accept any of the first 3 options, a sales agent was required to sign a release waiving any existing legal claims he or she had against Allstate. Most of the employees accepted one of those three options. The employees who refused to sign releases received only 13 weeks of severance pay.

Employee Termination AgreementThe Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit against Allstate. It claimed the company violated federal law by requiring the employees to release any legal claims they had against Allstate if they wanted to be hired as independent contractors since that meant they would have to give up any discrimination claims they had against the company. Specifically, the EEOC claimed this violated the anti-retaliation provisions of Title VII, the Age Discrimination in Employment Act (“ADEA”) and the Americans with Disabilities Act (“ADA”). Two employees also filed their own lawsuits claiming the releases they signed were invalid.

All three cases eventually were consolidated and Allstate moved to dismiss all of the claims. The court granted partial summary judgment on the claims filed by the former employees. However, it ruled that a trial was necessary to determine whether the employees signed the releases knowingly and voluntarily, and whether the releases were unconscionable.

The trial court also dismissed the EEOC’s entire case. Among other things, it concluded it was not unlawful for Allstate to require former employees to agree to waive their legal claims against it as a condition to hiring them as independent contractors. The EEOC appealed.

Earlier this year, in Equal Employment Opportunity Commission v. Allstate Ins. Co., the Third Circuit affirmed the trial court’s ruling that dismissed the EEOC’s case. The Third Circuit explained that it is well established that employers can offer terminated employees additional benefits if they agree to release their legal claims against their former employer. Of course, such a release is enforceable only if the employee signs it knowingly and voluntarily, receives something of value in exchange for it, and the release does not waive claims that might occur in the future.

The Third Circuit rejected the EEOC’s argument that this case was unique in that Allstate required the employees to sign releases before it would allow them to work as independent contractors. Among other things, it found this argument was illogical since the EEOC admitted companies can offer employees severance pay in exchange for releasing their legal claims. The Third Circuit indicated that Allstate offered employees another alternative to severance pay — working for it as an independent contractor. It ruled that offering this additional option did not make the releases retaliatory or unenforceable, but rather was a benefit to the employees.

The Court further found Allstate could not have retaliated against the employees because refusing to sign a release is not legally protected under Title VII, the ADA or the ADEA because it is not necessarily related to an objection about unlawful discrimination. Likewise, it found the company’s refusal to hire former employees who did not sign the release as independent contractors was not an adverse employment action since the former employees did not have a legal entitlement to be rehired.

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In a recent employment law case, Davis v. Husain, the New Jersey Supreme Court held that a judge may not engage in any communication with a member of the jury outside of the presence of the lawyers involved in the case (known as ex parte communications), including discussions after the jury has rendered a verdict. In this case involving a claim of sexual harassment, the jury found plaintiff’s former employer liable for having engaged in sexual harassment. After the verdict was rendered and the jury was dismissed, a juror mentioned to the trial court judge that the defendant had not placed his hand on the Bible when taking the oath before he testified. The conversation between the judge and the juror occurred outside the presence of counsel involved in the case.

The judge later advised the attorneys for both parties of the comment by the juror. In motions filed after the trial, the defendant moved for a new trial. The trial court denied the motion, and the Appellate Division agreed with the trial Court. The defendant then appealed to the New Jersey Supreme Court.

In reaching a decision in the case, the Supreme Court noted that under the Court Rules all communications between a judge and a jury during a trial must be in open court. The Court considered two Appellate Division cases in New Jersey, a civil case and a criminal case. In both of these cases, the Appellate Division expressed disfavor as to the ex parte communications between the judge and jury after the jury reached a verdict.

The Court indicated that it wanted to be clear in terms of the rule and to provide a “bright-line” for judges concerning communications with jurors outside of the involvement and presence of counsel and parties to a litigation. The Court stated specifically, “[p]ost-verdict ex parte communications between the trial court and jurors cannot be countenanced. The informality of such encounters, however benign their intended purpose, creates the possibility for the innocent remark or question to spark an attempt to plumb jurors’ decision-making processes.”   The Court held that all ex parte communications between a judge and juror are prohibited, including post-verdict communications.

Jury in sexual harassment lawsuitThe Court then discussed the facts of the Husain case, noting that as a general matter jury deliberations are to remain secret unless “good cause” can be shown indicating the potential for prejudice during the jury deliberation process. Instances of “good cause” might include circumstances in which it appeared that a juror either communicated to fellow jurors facts outside of those revealed during the trial, or made comments reflecting unlawful prejudice that tainted the jury deliberations.

The case was remanded for the trial court to determine whether the comment made by the juror to the judge post-verdict had any impact on the jury deliberations or the ultimate verdict. In remanding the case, the Court provided that the investigation be conducted by a different judge than the trial judge involved in the case, and that the investigation be narrow to preserve the secrecy of the jury deliberations.

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New Defense to Sexual Harassment Claims

Earlier this week, in Aguas v. State of New Jersey, the New Jersey Supreme Court provided employers a new defense to sexual harassment claims under the New Jersey Law Against Discrimination (“LAD”).

Specifically, the Court adopted a defense that previously applied only in federal cases. That defense is often referred to as the “Faragher/Ellerth defense,” from the two United States Supreme Court cases that initially adopted the defense under federal law: Faragher v. City of Boca Raton and Burlington Industries v. Ellerth.

To understand this defense it is important to understand two ways in which employers can be held liable for sexual harassment committed by one of their employees. One way is if the victim of the harassment proves the employer was negligent. This is usually accomplished by showing the employer did not have an anti-harassment policy, or that its policy was not effective.

A second way employers can be liable for harassment committed by their employees is called vicarious liability. Vicarious liability can be proved by showing the employer put the harasser in a position of authority. In other words, it holds employers responsible for harassment committed by their supervisors.

The Faragher/ Ellerth defense applies in limited circumstances. It applies only to the vicarious liability theory, not to the negligence theory described above. It also does not apply when the harassment led the victim of the harassment to experience a tangible employment action such as being fired, demoted, suspended, or forced to resign.

Sexual Harassment In The OfficeBut when the Faragher/Ellerth defense does apply, it provides the employer a defense to liability. Specifically, under this this defense an employer cannot be held responsible for sexual harassment if it can prove:

  1. It “exercised reasonable care to prevent and correct promptly any sexually harassing behavior”; and
  2. The victim of the harassment “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

Broader Definition of “Supervisor”

The Aguas case is not all bad news for employees. It also expands the definition of a “supervisor” under the LAD.

In interpreting the primary federal anti-discrimination law, Title VII, the United States Supreme Court has ruled that a supervisor is someone who has the authority to make decisions regarding hiring, firing, promotions, demotions, discipline, compensation, or other tangible employment actions.

Fortunately, the New Jersey Supreme Court declined to apply this relatively narrow definition under the LAD. Instead, it defined supervisors not only to include individuals who have the authority to make tangible employment decisions, but also ones who have the authority to impact the employee’s day-to-day work, such as by giving out job assignments.

The Bottom Line

In light of the new defense to harassment claims created by the Aguas case, it is now even more important that employees who experience sexual harassment at work should complain to the company’s human resources department or someone else designated to receive complaints.

Of course, there are times when it is reasonable for an employee not to make an internal complaint about harassment, such as when the employee does not even know there is a policy, has been threatened with retaliation if she makes a complaint of harassment, or has evidence that the policy is not effective. However, failing to make a complaint can jeopardize a potential sexual harassment case.

In short, Aguas can leave employees in a difficult position. They can complain about harassment and risk that they will face retaliation, or they can choose not to complain and risk they will not be able to pursue a sexual harassment lawsuit. Accordingly, if you have experienced a hostile work environment at your job, we highly recommended that you consult with an experienced employment lawyer to help you decide if and how you should report the harassment you have experienced.

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New Jersey has many well-known laws that protect employees. Perhaps the two best know are the New Jersey Law Against Discrimination (“LAD”), an anti-discrimination law, and the Conscientious Employee Protection Act (“CEPA”), a whistleblower law. The state has many other employment laws as well.

One much less known law is the Worker Freedom From Employer Intimidation Act, which went into effect in 2006. It protects employees against certain forms of religious and political intimidation at work. Specifically, it prohibits companies from requiring employees to attend meetings or to participate in communications regarding the employer’s opinion about religious or political issues. The law defines “political matters” to include affiliation with a political party, as well as decisions to join, not join, or participate in “any lawful political, social, or community organization or activity.”

Despite that prohibition, the act allows employers to invite employees to voluntarily attend employer-sponsored meetings and to provide other religious and political communications to their employees as long as make it clear the employees will not be penalized if they refuse to attend the meetings or accept the communications.

The Act includes an exception permitting communications about religious or political matters that the employer is legally required to communicate to the employee. However, this exception applies only to the extent the communication is legally required.

Office PoliticsThe law also permits religious organizations to require employees to attend employer-sponsored meetings or to participate in any communications with the employer to communicate the employer’s religious beliefs, practices or tenets. Similarly, it permits political organizations and political parties to require employees to attend meetings or participate in communications about the employer’s political purposes and beliefs. Further, it permits educational institution to require student or instructors to attend lectures on political or religious matters as long as they are part of the institution’s regular course work.

In addition, the law prohibits retaliation. In particular, it makes it unlawful for an employer to fire, discipline or otherwise penalize, or to threaten to fire, discipline or penalize an employee because he or she reported an actual or suspected violation of the Act.

The Act allows a wide range of relief to employees whose rights have been violated under it. Those remedies include: (1) a restraining order prohibiting continuing violations; (2) reinstatement of the employee to his/her former job or an equivalent one; (3) lost wages and benefits; and (4) reasonable attorneys’ fees and costs. It also permits an award of punitive damages, but caps those damages at three times the employee’s actual damages.

Unfortunately, the Act has only a 90-day statute of limitations. As a result, an employee who wants to pursue a claim under it must act extremely quickly. It also makes it clear it does not limit the right to bring a common law wrongful termination claim which, when applicable, has a two-year state of limitations. Further, individuals who have claims under the Act may also have claims of religious discrimination under the LAD, retaliation under CEPA, or other related claim.

For information about other New Jersey employment laws, please see my previous article which provides an Overview of New Jersey Employment Law Statutes.

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A recent case, Kaplan v. Greenpoint Global, provides a good example of several claims an employee might be able to bring if an employer fails to live up to the promises it made.

On December 1, 2010, Leslie Kaplan began working for Greenpoint Global as its Director of Legal Services. Greenpoint is a company that outsources legal services to businesses, law firms and individuals.

Before accepting the job, Ms. Kaplan told Greenpoint’s Chief Executive Officer, Jacklyn Karceski, that her most recent salary exceeded $200,000 and she was seeking similar compensation from Greenpoint. Ms. Karceski indicated that her goal was realistic. Ms. Kaplan also told the company’s founder, Sanjay Sharma, that her salary needed to “start with a two.” Mr. Sharma responded “No problem.” According to Ms. Kaplan, she relied on these assurances by Greenpoint and declined pursuing an opportunity to return to her former job. Despite its promises, Greenpoint actually paid Ms. Kaplan at the rate of $80,000 per year.

In her lawsuit, Ms. Kaplan asserted numerous claims relating to the fact that Greenpoint did not pay her $200,000 per year. She also brought a wrongful termination claim in which she claims Greenpoint fired her in retaliation for complaining about numerous misrepresentations the company made to convince her to accept its job offer. For example, she alleges: (1) the address the company claimed was its New York headquarters actually is Mr. Sharma’s home address; (2) Ms. Karceski grossly overstated the number of lawyers and other employees Greenpoint had working for it; (3) Mr. Sharma told her a specific client was doing a million dollars of business with Greenwood when it actually had done only $36,000 of business; and (4) Mr. Sharma told her Greenpoint was comparable to a competitor whose annual revenues exceeded $25 million, when Greenpoint actually lost at least half a million dollars in 2010.

Greenpoint eventually filed a motion for summary judgment, asking the judge to dismiss each of her claims. However, the court upheld all of Ms. Kaplan’s claims.

Employer makes false promise to employeeAlthough Ms. Kaplan did not have a written employment contract, the court upheld her breach of contract claim. It found enough evidence for a jury to conclude that Greenwood had entered into an oral employment contract to pay her $200,000 per year. Likewise, it upheld her claim under the New Jersey Wage Payment Law, finding sufficient support for her claim that the company violated the law by failing to pay her full agreed-upon wages.

The court also permitted Ms. Kaplan to proceed with her promissory estoppel claim, finding evidence that the company made a “clear and definite promise” to pay her at least $200,000 per year, a promise it expected her to rely upon; and Ms. Kaplan relied on that promise to her detriment by not pursuing an opportunity to return to her previous job. Notably, the court reached this conclusion even though Ms. Kaplan’s former employer never actually offered her that job.

Additionally, the court refused to dismiss Ms. Kaplan’s claim for negligent misrepresentation. It found enough evidence to demonstrate she relied on misinformation the company provided to her about its financial status and about her own salary when she accepted the job offer.

The judge also allowed Ms. Kaplan an opportunity to prove her quantum meruit claim. In that claim, Ms. Kaplan is trying to require Greepoint to pay her the reasonable value of the services she provided to it. The court concluded that a jury needs to determine whether the reasonable value of Ms. Kaplan’s services were $80,000 per year, $200,000 per year, or some other amount.

Finally, the court permitted Ms. Kaplan to continue with her wrongful termination claim. It ruled that a reasonable jury could find Greenpoint fired her because she objected to the misrepresentations it had made to her. It further concluded that Ms. Kaplan could reasonably believe those misrepresentations constituted fraud and violate the New Jersey Consumer Fraud Act.

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The question of whether you are an employee or an independent contractor can be very important. It can determine many issues, including how you will be taxed, whether you are entitled to health insurance and other employee benefits, and whether you are protected by various employment laws. However, the issue whether you have been misclassified as an independent contractor can be confusing because there are different tests under different laws.

Earlier this month, in Hargrove v. Sleepy’s, LLC, the New Jersey Supreme Court clarified which test applies under two important state laws: The New Jersey Wage and Hour Law (“NJWHL”) and the New Jersey Wage Payment Law (“NJWPL”). The NJWHL is a law that, among other things, entitles covered employees to be paid at least the minimum wage, and overtime at time-and-a-half when they work more than 40 hours in a week. Similarly, the NJWPL requires most employers to pay employees at least twice per month.

Group of industrial workers. Isolated on white background.The case was filed in federal court. The Unites States District Court for the District of New Jersey applied a relatively narrow definition of “employee.” It concluded the plaintiffs were independent contractors, and therefore were not protected by the NJWHL or the NJWPL. Accordingly, it dismissed their case.

The plaintiffs appealed to the Third Circuit Court of Appeals. The Third Circuit then asked the New Jersey Supreme Court to answer the question because it involves an interpretation of state law.

In Hargrove the New Jersey Supreme Court answered the Third Circuit’s question by adopting something called the “ABC test.” This is the same test the New Jersey Department of Labor uses to determine if someone is covered by the New Jersey Unemployment Compensation Act.

Under the ABC test, an individual is presumed to be an employee. The employer can prove the worker is not an employee if it can establish three things:

  1. The company did not exercise control over regarding any aspect of the person’s work, and did not have the ability to exercise any such control.
  2. In determining whether the employer has the right to exercise control over an individual, a court can consider the contract between the employer and the worker, but it cannot rely on the contract alone. Rather, it has to look at all of the circumstances relating to the actual performance of the work;
  3.  The services provided by the person are either “outside the usual course of the business for which such service is performed” or are “performed outside of all the places of business of the enterprise for which such service is performed;” and
  4.  The individual normally works in an independently established trade, occupation, profession or business, and is likely to continue to do so after this relationship ends. A company cannot meet this factor if the worker is likely to join “the ranks of the unemployed” after the relationship is over.

This definition of “employee” is significantly broader than the definition under the Fair Labor Standards Act, a federal law that provides similar protections to the NJWHL. In fact, it is even more expansive than the broad definition under the New Jersey Law Against Discrimination and the Conscientious Employee Protection Act (“CEPA”). This is likely to significantly expand the number of workers in New Jersey who are entitled to be paid minimum wage and receive overtime pay.

For more information about the relevant definition of an “employee” under CEPA, please read my previous article: Independent Contractors Protected by Conscientious Employee Protection Act.

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Beginning this month, East Orange, Irvington, Passaic and Paterson will join Newark and Jersey City in requiring employers to provide their workforce with paid sick leave. Montclair and Trenton will begin requiring covered employers to provide paid sick leave in March. The ordinances governing sick pay in these municipalities largely mirror Newark’s law that went into effect last year.

The ordinances governing sick leave are nearly identical. Eligible employees include those who work for at least 80 hours per year for an employer of 10 or more employees. Covered employers are required to provide employees with 40 hours of paid sick leave each calendar year. If an employer has fewer than 10 employees, it is required to provide 24 hours of paid sick time each calendar year. Employers of child care, home health care and food service workers, however, are required to provide 40 hours of paid sick leave even if such employers have less than 10 employees. Government employees, employees of New Jersey schools and members of construction unions are not covered by the various ordinances.

a mother and sick child in bed. flu. childhood diseases.In determining the number of employees for coverage, full time, part-time and temporary employees must be counted. Paid sick time is accrued one hour of sick time for every 30 hours actually worked, and employees can begin to use the paid sick time once they reach 90 days of employment. Unused paid sick leave that is not otherwise paid out to employees can be carried over to the following calendar year, but employees may only use 40 hours of paid sick time per year. Also, employees are not entitled to reimbursement of unused paid sick time upon the termination of employment.

Paid sick time can be used for an employee for his or her own or the employee’s care of family members involving:

  • Mental or physical illness, injury or health condition;
  • Medical diagnosis, care or treatment; or
  • Preventative care.

The following are included in the definition of a family member: children, parents, civil union partners, grandparents (or spouses, civil union partners or domestic partners of grandparents), spouses, domestic partners, grandchildren and siblings.

Paid sick time also can be used if the employers’ place of business is closed due to a public health emergency, or if an employee needs to care for a child whose school or day care is closed because of a public health emergency.

Employers may not interfere with or retaliate against employees for the exercise of their right to take paid sick leave. Additionally, employers can be fined for failures to comply with the paid sick leave ordinance.

There also is a notice requirement for employers. Employers are required to provide all employees and new employees upon hire with written notice of the paid sick leave policy, and are to display a poster outlining the paid sick leave policy as well. Also, the sick leave policy must be in English and any other primary language spoken by at least 10% of the employer’s workforce. The municipalities have not yet issued such notices and posters. As a result, in the meantime employers will need to draft a notice and poster to distribute to their employees.

In preparing such notices, employers will have to include the following information:

  • The employee’s right to paid sick time;
  • The accrual and the amount of paid sick time available to employees;
  • The terms of use under the paid sick leave ordinances;
  • The employee’s right to be free from retaliation; and
  • The employee’s right to file a complaint if sick leave is denied or if the employee is retaliated against.

As a result of these ordinances, employees who may not otherwise have been eligible for paid time off will now have some time available to address their own and their family member’s medical issues.

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Last week, I discussed a case dealing with the defense to Family & Medical Leave Act (“FMLA”) claims based on the employee’s inability to perform the essential functions of her job. The same case also addresses the employee’s claim that her employer retaliated against her for taking an FMLA leave. Specifically, Vanessa Budhun claims her employer, Reading Hospital and Medical Center, replaced her before her FMLA-protected leave ended.

The District Court dismissed Ms. Budun’s retaliation claim on the basis that (1) she was unable to return to work before her 12 weeks of FMLA leave expired, (2) she was neither fired nor experienced another adverse employment action, and (3) there was not enough evidence to prove she was fired because she requested an FMLA leave.

Office Employee Collected Items After Fired in Violation of Family & Medical Leave ActOn appeal, the Third Circuit rejected all three of those arguments. First, it rejected the argument that Ms. Budhun was unable to return to work before her FMLA leave expired. It did so for the same reasons it found Reading Hospital could have interfered with her FMLA rights, as discussed in last week’s article: FMLA Requires Medical Support for Employer Denying Reinstatement Based on Employee’s Inability to Perform Essential Job Functions.

Second, the court rejected the argument that Ms. Budhun did not experience an adverse employment action. As explained in the opinion, an adverse employment action is something that “alters the employee’s compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee.” Examples include being fired, suspended or demoted.

The District Court concluded Ms. Budhun voluntarily resigned because the company never told her she was fired and she failed to return to work before her 12 weeks of FMLA-protected leave expired. The Third Circuit disagreed. It recognized that a reasonable jury could find Ms. Budhun experienced an adverse employment action when Reading permanently replaced her and told her to pick up her personal belonging and to return her company badge and keys. Reading did not offer Ms. Budhum another job, and instead told her she was ineligible to transfer to another position within the hospital. According, the Third Circuit held that even though Ms. Budhum was not expressly fired, she had experienced an adverse employment action.

Finally, the Third Circuit found that a jury could find Ms. Budhun established a link between her FMLA leave and her termination.  Reading Hospital argued there was more than a two month gap between Ms. Budhun’s request for an FMLA leave in August 2010 and the company’s decision to replace her in November 2010. However, the Third Circuit recognized a jury could conclude Reading decided to replace her as early as September 15, which was before her protected FMLA leave had expired, and only about a month after she requested this leave. It found this relatively short time between her request for an FMLA leave and the company’s decision to replace her is “unusually suggestive” of retaliation, and therefore sufficient to support a retaliation claim. Accordingly, in Budhun v. Reading Hospital and Medical Center the Court ruled that a jury must decide whether the company retaliated against Ms. Budhun, and reversed the District Court’s order dismissing that claim.

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Earlier this year, the Third Circuit ruled that Reading Hospital and Medical Center may have violated the Family & Medical Leave Act (“FMLA”) by failing to reinstate one of its employees after her physician cleared her to return to work.

Vanessa Budhun broke a bone in her right hand on July 30, 2010 and subsequently began an FMLA leave. On August 12, 2010, she submitted a doctor’s note clearing her to return to work on August 16. The doctor’s note also stated: “No restrictions in splint.”

In response, Reading informed Ms. Budhun that because her doctor’s note said “no restrictions” she had to return to work “full duty (full speed).” The hospital also indicated that if she could not work at full speed she had to submit another doctor’s note extending her medical leave. In a subsequent email, Reading clarified that Ms. Budhun could not return to work until she had use of all 10 fingers.

FMLA claim Employee typing with broken handMs. Budhun’s doctor then submitted FMLA forms to Reading indicating her leave would end on August 16. Her physician also included a note asking to excuse her from work until September 8, apparently in reaction to the hospital indicating she could not return until she was able to work at full speed. Gradually, Ms. Budhun’s doctor extended her medical leave until September 23. Since Ms. Budhun already had used approximately 4 weeks of FMLA leave earlier in the year, this exceeded her annual entitlement of 12 weeks of FMLA-protected leave.

By September 25, Ms. Budhun still was unable to return to work without limitations. As a result, Reading gave her job to another employee. On October 6, 2010, the company told her to pick up her personal belongings and return her identification badge and keys. By November 9, 2010, Reading deemed Ms. Budun to have abandoned her job.

Ms. Budhun filed a lawsuit alleging Reading had interfered with her rights under the FMLA. The District Court dismissed her case, ruling the FMLA allows employers to refuse to permit employees to return to work until their doctors clear them to work without restrictions. Ms. Budhun appealed.

In Budhun v. Reading Hospital and Medical Center, the Third Circuit reversed the trial court’s order dismissing Ms. Budhun’s claim. It found enough evidence to support her claim that Reading violated the FMLA by refusing to permit her to return to work on August 16.

The Third Circuit recognized the FMLA permits an employer to refuse to reinstate an employee returning from a leave if she cannot perform the essential functions of her job. However, it held that it is up to the employee’s health care provider, not the employer, to determine if the employee can perform those functions.

The court further ruled that an employer cannot require an employee’s physician to determine if she can perform the essential functions of her job unless the employer provides a list of those job functions. Reading did not do so, and Ms. Budhun’s doctor cleared her to return to work with “no restrictions.” As a result, the hospital was obligated to permit her to return to work.

Instead, without any medical support, Reading required Ms. Budhun to have full use of all of her fingers before she could return to work. It did so even though she was able to type, and there was nothing in her job description requiring her to type at any particular speed. Accordingly, the Third Circuit ruled a jury could find Reading interfered with Ms. Budhun’s rights under the FMLA by failing to reinstate her, and reversed the order dismissing her claim.

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