The history of this employee with the company goes back two years. He took leave under the Family and Medical Leave Act eleven weeks ago. The reason for the leave was his wife gave birth to twins prematurely. The leave was granted and now the employee is ready to return to work. During his absence, his department had a change in management. Along with the return to work, the employee has requested pay covering the duration of the leave. Management has denied this request.
The Family and Medical Leave Act of 1993 (FMLA) entitles an employee to take up to 12 weeks of time off work for the birth of a child, among other reasons. There are circumstances that must be met to make an employee eligible for this leave. First, the employer must be covered by the FMLA and have a minimum of 50 employees within 75 miles of the employee’s location. The employee must also have worked for the employer for at least the previous calendar year and have worked a minimum of 1,250 hours during that year. The employee must also give 30 days or reasonable notice of intent to take leave. When the employee returns to work the law requires he be given his original job at the same rate of pay and benefits or an equivalent job with the same pay and benefits. While the employee is out on leave, the employer is required to maintain the employee’s health insurance. The employer is not required to pay the employee for the leave time (Wage and Hour Division Fact Sheet #28, 2010).
In this case, Notice of the leave could have been immediate since the babies came prematurely. By the company granting the leave to begin with, it is assumed then that the employer must fall under the provision of the FMLA for number of employees as well as the employee having worked the minimum number of hours to qualify. The company is required to have maintained the employee’s health insurance premiums while he was out on leave and to reinstate him at his previous level of pay and benefits. Unless it is company policy, the law does not require the employer to pay the employee’s salary for the time he was on leave. No violations of the FMLA occurred in this instance.
During a recent annual performance review, a discrepancy was discovered regarding a promotion. An employee that is 68 years old was denied a promotion because of age. The promotion was given to another employee who is 32 years old. Within the review, the promotion hinged on a particular score, the 68-year-old received “above average” on this score while the younger employee received a rating of only “adequate”, establishing the older employee as more qualified for the promotion.
This case falls under the Age Discrimination in Employment Act of 1967 (ADEA). This law protects employees over the age of 40 from discrimination based on age when being considered for promotions, among other issues. All other things being equal, this law would require the employer to consider the older employee for promotion first. The only exception to this rule would be if the employer had fewer than 20 employees, the law does not apply. Under certain circumstances, the employer can make a deal with the employee to give up their rights under this law. The employee must be encouraged to seek legal counsel and have a minimum of 21 days to consider before accepting (Facts About Age Discrimination, 2008).
Unless the company has fewer than 20 employees, this is a clear violation of the Age Discrimination in Employment Act. At this point, the company has only two options. The first is to award the promotion to the older employee retroactively. Failing that, the company can ask the employee to consider waiving their right under the law for sufficient inducement.
A job applicant was denied employment based on a disability of being paralyzed in both legs and requiring a wheelchair for mobility. The employer has informed the applicant that the job would entail moving all over the company’s seven floor headquarters building and using elevators. The control pads for the elevators would have to be moved down four inches to enable the applicant to access them. The employer has declared this is an undue hardship for accommodation.
The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination by an employer based on disability. The ADA defines a disability as a major physical impairment. The law states that if a disabled applicant is qualified for a job and is able to perform the job “with or without reasonable accommodation” then the applicant must be considered for the position (The ADA: Your Employment Rights as an Individual With a Disability, 2005). The law describes moving or substituting equipment as reasonable accommodation. If the employer is unwilling or unable to provide accommodation, then they have to demonstrate why or how providing an accommodation would create an undue hardship for the company. The applicant would then have the option of providing the accommodation themselves before they could be passed over for the position (2005).
The employer in this situation is in direct violation of the ADA. If the company is large enough to need a seven story building for its headquarters, then moving some control panels in no way would create a demonstrable undue hardship for them. In any case, other sections of the ADA would require moving them if the building were required to provide any sort of public access whatsoever. In addition, the applicant was never given the option of providing for his or her own reasonable accommodation.
The United States Equal Employment Opportunity Commission. (September 8, 2008). Facts About Age Discrimination. Retrieved from http://www.eeoc.gov/facts/age.html
The United States Equal Employment Opportunity Commission. (March 21, 2005). The ADA: Your Employment Rights as an Individual With a Disability. Retrieved from http://www.eeoc.gov/facts/ada18.html
United States Department of Labor. (Revised February, 2010). Wage and Hour Division Fact Sheet #28: The Family and Medical Leave Act of 1993. Retrieved from http://www.dol.gov/whd/regs/compliance/whdfs28.htm