Family Medical Leave Act and Job Security

by David McCarthy

It is easy to suppose that an employee on leave under the Family and Medical Leave Act ("FMLA") enjoys a special "halo" of job security and protection that co-workers who are on the job do not. After all, businesses subject to FMLA must allow eligible workers up to 12 weeks of unpaid leave each year plus reinstatement to their old position. That invites an inference that an employee on leave has privileges and protections that an employee at work does not.

But it is not so. The work-at-will rule continues to apply to the employment relationship and does not yield to leave-taking.

Suppose the employee on leave had worked the night shift, and the employer puts an end to the night shift. Does that mean that only those who were actually working the night shift are out of a job while the one who was on leave is not?

Answer: no.

If the position would have been eliminated while the employee was on active duty, so to speak, the fact that the employee is on leave does not preclude elimination of the position or obligate the employer to hold the position open for the employee.

FMLA is codified at 29 U.S.C. 2601 et. seq. It generally applies to businesses with 50 employees or more. An eligible employee is one who has worked for the employer for at least 12 months (though that need not be 12 months in a row) and who has worked at least 1,250 hours in the 12 months immediately prior to the start of leave. That employee is entitled to reinstatement to his/her old position or to a position that is similar in terms of pay, benefits, etc.)

A LITTLE LEARNING IS A DANGEROUS THING

by David McCarthy

There is a saying in Texas: You can’t fix stupid. Is it true? We’ll report. You decide.

At the request of an on-again, off-again client we recently made contact with a distant relative of hers who had been named a respondent to a petition for an order of protection.

Orders of protection are available under the Illinois Domestic Violence Act of 1986, and they can be used to obtain all sorts of relief, from a “stay-away” order to exclusive possession of a house or apartment to custody of a child to an order on the respondent to undergo counseling. In the case at hand a long-time adversary was asking the court for a “stay-away” order on grounds that the respondent was guilty of stalking.

The conversation took place at three o’clock on a Wednesday afternoon. The case was going to be up in court the next morning. The respondent had been served with the court papers a month before and had, in fact, gone to court some weeks earlier to get the matter continued to the date in question.

Why, then, did she wait until late on the afternoon prior to the hearing to think about hiring an attorney? She inferred from the fact that she had spent some time in the employ of a law office that she was fully capable of defending herself, and she continued to think so until there arrived, in that day’s mail, notice that the petitioner had a dozen witnesses under subpoena.

At that point the respondent prevailed upon a family member to front the legal expense, but just as she had overestimated her abilities to defend herself, so, too, she grossly underestimated the expense associated with a hearing at which the opposition proposed to submit testimony from 12 witnesses.

Next, the respondent drew upon her law office experience to conclude that she could defend the case on the grounds that some of the witnesses under subpoena had not received the per diem and mileage fees required by statute. That objection was available only to a witness under subpoena, not to the respondent, and it did not provide her with a defense of any sort.

Finally, for all the importance the respondent placed upon having once worked in a law office, the experience had not enabled her to identify her best defense. The petitioner was not within the class of persons eligible to seek an order of protection against the respondent.

A little learning is a dangerous thing, said Alexander Pope.

The law office experience of the respondent in the foregoing case worked against her, not for her. She overestimated her abilities, underestimated the expense, and mis-identifed her defense.