Posted by marykeating on March 23, 2012 under Employment benefit issues, FMLA | 
As reported here a few months ago, the Supreme Court considered a case involving a former State of Maryland employee. The employee claimed he was fired for taking FMLA leave, and the State defended on the basis that it cannot constitutionally be sued under this law. The defense is based on the idea that states have sovereign rights not to be sued by its citizens, except where there are laws or constitutional provisions that remove the sovereign protection.
Mr. Coleman sought time off to care for a serious health condition. When an employer has more than 50 employees, an eligible employee is generally entitled to use up to 12 weeks of leave in a year’s period to care for the employee or a family member. When the FMLA passed, one of its stated purposes was to address sex role issues, where women are expected to be the primary caregivers for sick family members. Because of the gender discrimination underpinnings of the law, the Supreme Court had previously held that a state can be sued, consistent with the U.S. Constitution, under the FMLA if the employee requested leave to care for a family member.
It took a different view when the employee needs time off for his or her own illness. But when the employee needs time to take care of himself, there is no sexism implicated. Both genders get sick or injured, and there was no suggestion that this portion of the law addressed historical sex or other discrimination. Therefore Mr. Coleman is not entitled to sue the State in federal court to enforce his FMLA rights.
This ruling affects only government employees. Employees in the private sector are still eligible for FMLA leave for their own illnesses.
Sovereign immunity can be, and has been, waived in a number of situations. According to The Daily Record, State Senator Jamie Raskin states that a hearing might be desirable on the issue whether the State ought to waive its sovereign immunity so as to allow employees self-care rights.
Posted by marykeating on July 29, 2011 under FMLA, Family responsibility |
At the same time that employers are wailing about employees taking Family and Medical Leave protected under the FMLA, Congress continues to consider broadening its protection. We are witnessing a cultural divide between employers, used to dictating the schedules of their employees, and employees, clamoring for more work-life balance. Articles constantly tell us that the younger generation, especially, demands accommodation for having a life. They also remind us that the baby boomer generation is in a sandwich, caring for younger children, and aging parents. Sometimes these responsibilities just do not fit with a typical work schedule.
One of the recent tweaks would allow employees to take FMLA leave to participate in or attend children’s and grandchildren’s school and after-school activities. The time is limited to 4 hours in any month, and 24 hours in a year. The bill would also allow, subject to the same time limitations, time off for routine family medical or dental care needs, and attending to the needs of elderly family members, including nursing home visits.
This law is called the Family and Medical Leave Enhancement Act of 2011.
Another proposed amendment should be less controversial. The Parental Bereavement Act of 2011, S.1358, would provide leave to an employee under the FMLA following the death of a son or daughter. Unfortunately, there apparently is a need for this law. It is hard to fathom how an employer could deny a bereaved parent of leave after a child’s death. If the law passes, however, employers with more than 50 will not be able to fire a parent for not returning immediately to work. The bill specifies that the leave must be taken as a block of time. If the employer agrees, the employee may use it intermittently or to take a reduced schedule.
Ultimately, these laws improve our economy. People who can take their children to the doctor without losing a job can pursue a wider array of jobs, and work to their full capacity. As telework becomes more widespread, and checking on email and phone messages after hours becomes required, the line between work and personal life is already blurry. Employers have employees’ attention at home; they should allow them to leave the office now and then.
Posted by marykeating on July 5, 2011 under Employment benefit issues, FMLA, Family responsibility, Sex-based discrimination |
A Maryland state employee filed suit after his termination from the court system. He claimed that he was the victim of race discrimination, and also that his termination violated the Family and Medical Leave Act. The lower courts rejected both contentions, but the Supreme Court has agreed to hear the issue involving his FMLA claim. This blog discussed the case earlier.
That part of the decision related to the immunity of states from private lawsuits in federal courts. Under the 11th Amendment to the Constitution, states cannot be sued in federal courts unless the state has consented to the suit, or Congress has specifically, and legally, removed the immunity.
The Supreme Court earlier decided that Congress removed the immunity for FMLA suits against states when the employee was using FMLA protection to care for another person. The FMLA protected workers in that situation because of ingrained sex discrimination, “the pervasive sex-role stereotype that caring for family members is women’s work.”
The FMLA offers protection to workers taking time off for their own illness or disability also; but according to the Fourth Circuit, the motivation for the law did not implicate any constitutional protections. Instead, Congress found that the economic effect of job loss due to illness was profound, and sought a way to limit it when larger employers were involved. Because there was no constitutional imperative underlying the law, Congress could not validly permit the states to be sued.
The petition for certiorari pointed out cases in which the circuit courts believe that the law has to stand or fall as a unit, therefore all of its parts must be viewed together. Others specifically requested the high court’s guidance.
The Supreme Court does not announce why it agreed to hear a case; it becomes clearer (sometimes) after the decision comes out. The Rehnquist Court upheld states’ rights to be free of federal legislation, but this newer Court may go in a different direction.
