Department Of Labor Gives Examples of Illegal Retaliation

The U.S. Department of Labor has provided a guidance that gives specific examples of what constitutes illegal retaliation. The complete guidance is here. Some specific examples they provided are:

Example 1: Employee calls WHD about overtime. 

Nelson works as a cook at a restaurant and contacts WHD confidentially to inquire about overtime pay. Nelson tells another cook what he learned from WHD and his co-worker tells someone on the wait staff. Later that day their manager overhears two wait staff talking about the call and terminates Nelson’s employment. In this scenario, terminating Nelson’s employment because he contacted WHD (or was suspected of contacting WHD) would be prohibited. WHD may investigate or Nelson may file a private cause of action seeking appropriate remedies, including, but not limited to, reinstatement, lost wages, and liquidated damages. 

Example 2: Employee asks for additional break time to express breast milk. 

Aisha is a new mother who works for a call center. She uses her lunch break to express breast milk and needs additional time to finish pumping before she is able to return calls at her work station. Her boss complains when she is late returning from lunch and tells her she cannot use any time beyond her meal break for “personal stuff.” When Aisha asks if she has a right to take another break for pumping later in the day, her boss sends her home for the rest of her shift without pay. In this scenario, Aisha was sent home for attempting to exercise her rights under the FLSA. After investigating, WHD, in addition to requiring the employer to provide the requisite time and space for nursing mothers in compliance with the law, determines Aisha may also be entitled to back pay and liquidated damages for wages she lost when her boss sent her home in retaliation for requesting a break. 

Example: Worker penalized for using FMLA leave to care for child. 

Jaime takes approved FMLA leave to care for his seven-year-old daughter when she is in the hospital overnight and recovering from surgery. Jaime returns to work as scheduled but receives three negative attendance points for the days he used FMLA leave. Under his employer’s no fault attendance plan, employees are allocated points for every absence from work, regardless of the reason for the absence. Employees are disciplined when they accrue a set number of points, and employees who accrue more than ten points in a calendar year may be terminated. 2 A state employee’s private right of action may be limited by the sovereign immunity provision of the Eleventh Amendment. Id. 6 In this scenario, assigning attendance points to Jaime’s FMLA-protected leave days would be prohibited. Under the FMLA’s anti-retaliation provisions, an employer may not use the taking of FMLA leave as a negative factor in employment actions and may not count FMLA leave days under no fault attendance policies. In an investigation, WHD would require that the employer remove the attendance points from Jaime’s employment record for the days he used FMLA leave to care for his daughter. 

Example: Employee returns to work and her hours are cut in half. 

Deborah used FMLA leave from her job as a front desk clerk at a hotel when she suffered from migraine headaches that made it impossible for her to work. She was approved for FMLA leave and used it for three days in January and one day in February. In April, she had another episode, and used FMLA leave for two days. When she returned to work her new manager reduced her schedule from 40 hours to 20 hours a week saying they need workers who will show up every day. WHD completes an investigation and requires the hotel to return Deborah to her previous schedule and pay her for an additional 20 hours a week in wages for the duration of the period she worked the reduced schedule. WHD also requires the employer to pay Deborah an amount equivalent to her lost wages in liquidated damages. 

Example: WHD investigates and employer fires crew of agricultural workers. 

An employer houses 15 migrant agricultural workers in housing that is determined to be substandard. Workers sleep on the floor, have no electricity, use water from a garden hose, and have one hotplate for cooking that is shared among all of the workers. After a WHD investigator arrives at the location unannounced to inspect the housing conditions and interview workers, the employer fires all 15 workers because, “We don’t want any whiners on the team.” The employer does not pay the workers for their final week of work. In this scenario, WHD may pursue back pay, and reinstatement of employment for every worker, and civil money penalty assessments against the employer.

Example: Worker threatened with deportation. 

An employer participating in the H-1B visa program hired seven workers with H-1B visas to provide occupational, physical, and speech therapy services to patients in their homes. The employer deducted a monthly sponsorship fee from the pay of each worker with an H-1B visa. The employer required the workers to sign a form declaring that the deductions were for recouping personal loans it purportedly gave to the workers. When one worker refused to sign the document, the employer threatened him with deportation, criminal perjury, and threats of physical violence against his family in his home country. In this scenario, WHD may pursue back wages for the illegal deduction, civil money penalties against the employer for the retaliation, debarment from the H-1B program for two years, and other appropriate legal or equitable remedies. WHD also may, potentially, make a referral to the U.S. Department of Justice, Civil Rights Division, Immigrant and Employee Rights Section.2F 3

Example: Supervisor lies about employee’s performance history because of WHD interview. 

Charlotte is an employee at a vehicle assembly plant where WHD conducts an LVC compliance verification under the USMCA. She was instructed by her immediate supervisor to tell WHD representatives that she earns $16 an hour despite the fact that she actually earns $13.50 an hour. After the WHD representatives leave the worksite, Charlotte’s supervisor asks her what she said to WHD representatives. When Charlotte states that she told the truth, the supervisor fabricates a story of insubordination that results in the termination of Charlotte’s employment. Charlotte had no prior occurrences of corrective action and was otherwise in good standing with her employer. In this scenario, after investigating and verifying that Charlotte was retaliated against for cooperating with a WHD investigation, WHD may pursue lost wages, reinstatement, and the assessment of a civil money penalty.

Example: Federal contract worker’s promotion denied after they inquire about sick leave. 

Bernard works on a federal contract covered by EO 13706. He is a supervisor of maintenance services at a national park and is about to be promoted. When Bernard emails his employer, the contractor, asking about the availability of paid sick leave to attend his spouse’s upcoming medical appointments, his planned promotion is cancelled and he is rescheduled from working weekdays only to weekdays and weekend shifts. When Bernard asks about the changes, his manager states the changes were made so that he would have fewer responsibilities at work and more time available to help with his wife’s health care. A representative for the national park (the contracting agency) who communicates with Bernard about work orders during the week, contacts WHD on Bernard’s behalf. In this scenario, WHD may investigate to determine whether the maintenance contractor has violated the anti-retaliation provisions of the EO and its regulations. The employer may be required to grant Bernard the promotion and return him to his previous work schedule and duties. He may also receive back wages to compensate for any difference in wages received compared to the wages he would have received if the retaliatory actions had not occurred. 

Example: Contract worker asks about deductions from pay and is denied bonus.

Geri is a crewmember working on the construction of a new post office building for a federal contractor covered by EO 14026. Geri asks her company payroll department about deductions from her paycheck that may bring her earnings below $15.00 per hour. The payroll department refers her question to a corporate officer of the company who directs the payroll department to cancel Geri’s quarterly performance bonus. In this scenario, a retaliatory denial of the bonus would be prohibited by EO 14026. WHD may investigate, determine the employer violated the EO, and require payment of the bonus and other wages that may be due if the deductions were improperly made.

These are just a few examples they provide for retaliation. The agency also describes retaliation in general:

Retaliation occurs when an employer, including through a manager, supervisor, administrator or other agent, takes an adverse action against an employee because they engaged in a protected activity.

 Examples of protected activity include making a complaint to a manager, employer, or WHD; cooperating with a WHD investigation; requesting payment of wages; refusing to return back wages to the employer; complaints by a third party on behalf of an employee; consulting with WHD staff; exercising rights or attempting to exercise rights, such as requesting certain types of leave; and testifying at trial. 

Under many of the statutes enforced by WHD, an employee can be protected from retaliation even if the employee’s complaint to the employer or WHD is based on a mistaken belief that the employee’s rights have been violated. For example, if a worker believes, and so tells an employer, that he is owed overtime pay for the hours he worked, the worker has engaged in a protected activity, even if the worker’s belief that he is due overtime turns out to be mistaken because he has been correctly paid. 

An adverse action is any action that could dissuade an employee from raising a concern about a possible violation or engaging in other protected activity, such as filing a complaint or cooperating in a WHD investigation. An adverse action taken by an employer can take many forms, including termination; confiscating a worker’s passport or other immigration documents; disciplinary actions; threats to employees, their families or co-workers; reduction of work hours or rate of pay; shift changes or elimination of premium pay; blacklisting; and demotion. Adverse actions can be subtle, such as excluding an employee from a regularly scheduled meeting, or overt, such as intimidating employees to return back wages found due (“kickbacks”), threatening an employee with deportation, or terminating an employee. 

Bottom line: If you think you've been retaliated against for objecting to something illegal your employer did, for contacting a government agency, or for taking protected medical leave, you should talk to an employment lawyer in your state about your rights. 

 

No, Small Employers Are Not Exempt from CARES Act Leave

I'm hearing about lots of employers with fewer than 50 employees claiming that it is their choice whether to grant CARES Act emergency sick leave or FMLA. That is simply incorrect. Employers with fewer than 500 employees have to comply with the CARES Act leave requirements. However, there are some exemptions allowed to employers with fewer than 50 employees that aren't given to larger employers.

Per the Department of Labor, in order to deny CARES Act sick leave or FMLA, the employer must be able to prove:

(1) Such leave would cause the small employer's expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;  

(2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or  

(3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.  

For reasons (1), (2), and (3), the employer may deny paid sick leave or expanded family and medical leave only to those otherwise eligible employees whose absence would cause the small employer's expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity, respectively.

These exemptions will not apply to most employees, so beware denying leave to  employees who don't fit these criteria. If a small employer decides to deny paid sick leave or expanded family and medical leave to an employee, the small employer must document the facts and circumstances that meet the criteria to justify the denial.

All covered employers are required to post this poster describing CARES Act rights.

Frankly, covered employers who deny this leave are pretty idiotic because they get dollar-for-dollar tax credits for all wages paid under this leave. 

For more on the leave requirements and penalties for violations, see the DOL website here.

New Paid Sick Leave And Family Leave Law For Coronavirus

Well, bowl me over. Finally, a somewhat pro-employee law is signed into law, and all it took was a global pandemic. The Families First Coronavirus Response Act (P.L. 116-127) became law on March 18, 2020.

Emergency Family and Medical Leave Expansion: If you are unable to work (or telework) due to a need for leave to care for your son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, and your employer has fewer than 500 employees or is a public agency, and you've worked at least 30 calendar days for the employer, then you qualify for up to 12 weeks of FMLA, and your job is legally protected. 

Now don't get me started on why Amazon is exempt and tiny businesses aren't. That's the power of lobbying. But hey, at least it's a start. 

You still have regular FMLA if you need to care for a sick family member, which applies to employers with 50 or more employees in a 75 mile radius of your location and you've worked at least a year. 

Unlike regular FMLA, they have to pay you, not less than two-thirds of your regular pay, up to $200/day and a maximum of $10,000 total. The first 10 days taken may be unpaid, but you may use other paid leave during that period, such as accrued vacation leave, personal leave, or medical or sick leave for unpaid leave. 

Which brings us to . . .

Emergency Paid Sick Leave:  You are entitled to up to two weeks of paid sick leave if you are unable to work or telework because of:

• a quarantine or isolation order
• have been advised by a healthcare provider to self-quarantine
• have symptoms and are seeking a diagnosis

For the above, you get your regular pay up to $511/day and $5,110 maximum.

• are caring for someone with any of the above, are caring for a son or daughter if the school or place of care of the son or daughter has been closed or the child care provider of your son or daughter is unavailable due to COVID-19 precautionsor, or
• if you are experiencing any other "substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor."

For these, you get two-thirds of your regular pay, up to $200/day and $2,000 maximum.

This applies, again, if your employer has fewer than 500 employees or is a public agency, but there's no minimum period of employment.

Your employer can't demand you find a replacement, they can't make you use other sick or vacation time, and they can't discharge, discipline, or take other discriminatory action against you for taking this leave.

Caveats

If your employer is a health care provider or an emergency responder, they don't have to comply with any of this if they don't want to. The exemption is automatic for the paid sick leave and will be subject to a regulation exempting them for the FMLA. Employers with under 50 employees may also be exempt from the sick leave under some circumstances.

There may be more coming down the road. Some states are enacting more protections. And the federal government is allowing states to expand unemployment compensation at the federal government's expense. Of course, Florida has done nothing so far to help employees. But hey, miracles happen, as is evidenced by this new law. 

Stay safe and stay home if you can!

Dear Employees and Job-Seekers: Stop Making These Career-Killing Mistakes

As someone who has handled employee-side employment law for many years, I run into the same frustrating mistakes over and over again. I thought I'd touch on a few that are common so that maybe I can stop you (or a friend or family member) from destroying their career.

Here are the most common career-killing mistakes I see in my practice:

1. Complaining about harassment: This is really the number one problem I see. If you write a long email to HR or your boss complaining that you are being "harassed," you aren't protected against retaliation. While harassment due to race, age, sex, national origin, religion, disability, or another legally-protected category is illegal, just plain "harassment" is not. So reporting it that way doesn't protect you against retaliation. When I ask why people didn't report that they were being treated differently than coworkers of a different race, sex, etc. they usually say something like, "I didn't want to go there." Well, if you'd gone there, firing you for your complaint would have been illegal. But firing you for saying you were harassed or bullied: not illegal.
2. Disclosing pregnancy or disability during interviews or applications: So many people think they have to disclose a pregnancy or disability right up front when they're job hunting. And I know many misguided TV shows portray failing to do so as somehow dishonest. But disclosing pregnancy or disability before you get a job offer mostly means the offer will never happen. You need to disclose after you get the offer, and only if you need accommodations such as time off for doctor's appointments. If the job offer is withdrawn after you seek accommodations, you might have a discrimination case.
3. Failing to put in for intermittent Family and Medical Leave: If you have worked at least a year and your employer has at least 50 employees, odds are you qualify for FMLA. If you need periodic time off for doctor's appointments, to care for a family member, to adjust your medications, or other medical reasons, then put in for intermittent FMLA. That way, you are legally protected against having those absences, latenesses, or leaving early held against you. I'm not sure why many employees are so hesitant to put in for FMLA when they or a family member have a serious medical condition. FMLA is there to protect you. Use it.
4. Failing to report sexual harassment in writing: If the boss or a coworker is hitting on you, making inappropriate comments or touching you, report it under the company's sexual harassment policy, but do so in writing. Otherwise, I find that HR will almost always denied that you made any legally protected complaint. They'll claim you complained about unfair treatment or harassment or bullying but never mentioned that it was sexual harassment. 
5. Failing to get out of a toxic environment: If you have a workplace that is making you physically or mentally ill due to bullying or other toxic conditions, get the heck out of there. But do it on your own time. Start looking and keep working. The mere act of job hunting will frequently make the terrible job more bearable.
6. Quitting without having a job lined up: If you let a sexual harasser or workplace bully run you out of a job before you have something lined up, they win. You're letting them put you in an even worse situation. When people tell me the workplace is too stressful and they have to get out, I ask them if they will be more stressed staying in the workplace or whether they will be more stressed being unemployed for 6 months or a year. It's way easier to get a job if you have a job. If you're in physical danger, then get out no matter what. Otherwise, unless you have enough savings to last at least a year while you're job hunting, try to stick out the bad situation while you're looking. Having a large resume gap is often a career killer. Oh, and nobody can actually force you to resign.

Hopefully I've just stopped you from making one of these career-killing mistakes. Tell a friend or a family member. Spread the word.

Dear HR: Stop Telling Employees They Can't Apply For FMLA Until They Use Their Vacation

For about the dozenth time this year, I heard another sob story about an employee who absolutely qualified for FMLA leave, yet was told by HR that they couldn't apply until they used up their vacation or PTO time. This is wrong on so many levels, and it screws both the employee and the employer. So stop it.

Seriously. Stop it.

It screws up the employee because their boss assumes they're taking unprotected leave and so those sick and vacation days used for hospital stays, doctor visits and caregiving responsibilities are held against the employee in reviews, consideration for promotions, and discipline.

It screws up the employer because once the employer knows leave should be covered by FMLA, the employer's legal duties under FMLA kick in:

When an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA purpose, the employer must notify the employee of his or her eligibility to take leave, and inform the employee of his or her rights and responsibilities under the FMLA. When the employer has enough information to determine that leave is being taken for a FMLA-qualifying reason, the employer must notify the employee that the leave is designated and will be counted as FMLA leave.

 FMLA is mostly about unpaid leave, but employees do NOT have to use all their paid leave before applying:.

Employees may choose to use, or employers may require the employee to use, accrued paid leave to cover some or all of the FMLA leave taken. Employees may choose, or employers may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA. The substitution of accrued sick or family leave is limited by the employer's policies governing the use of such leave.

The consequence to employers can be severe. First of all, the employee may be entitled to more leave than you're legally required to give if you mess this up. Second, if the employee's leave should have been designated as FMLA and wasn't, and you hold that time off against them, you're talking FMLA lawsuits plus disability discrimination lawsuits.

Employees, if you qualify for FMLA (you've been there at least a year AND worked 1250 hours or more in the past 12 months AND there are 50 or more employees of the employer within 75 miles of your work location) then don't believe HR when they say you can't apply. As soon as you know you have a serious medical condition and will need doctor's appointments or medical treatment, apply for intermittent leave. Employers frequently forget about intermittent leave, and it's a good thing. Here's more from the Department of Labor on intermittent leave:

(Q) Does an employee have to take leave all at once or can it be taken periodically or to reduce the employee’s schedule?
When it is medically necessary, employees may take FMLA leave intermittently – taking leave in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation.
Leave to care for or bond with a newborn child or for a newly placed adopted or foster child may only be taken intermittently with the employer’s approval and must conclude within 12 months after the birth or placement. 

(Q) Can an employer change an employee’s job when the employee takes intermittent or reduced schedule leave?
Employees needing intermittent/reduced schedule leave for foreseeable medical treatments must work with their employers to schedule the leave so as not disrupt the employer’s operations, subject to the approval of the employee’s health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodate recurring periods of leave better than the employee’s regular job.

So, HR folks, can we agree that you'll stop telling employees they can't apply for FMLA until they use their vacation? And employees, feel free to show them this post if they say that.

Court Imposes FMLA Catch-22

If you arrive at a friend's house at 12:05 a.m. and leave 14 hours later, would you say you stayed overnight? Of course you would. It's common sense. But common sense is sadly lacking in employment law many times.

In a case where an employee faced a FMLA Catch-22, the Third Circuit said that an employee who arrived at the hospital before midnight but who was actually admitted after midnight didn't stay overnight, and so was not protected by FMLA.

Why is "overnight stay" important? Well, the FMLA statute itself says zero about overnight. It says:

(11) Serious health condition
The term “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves—
(A) inpatient care in a hospital, hospice, or residential medical care facility; or
(B) continuing treatment by a health care provider.

The regulations, though, say this:

§825.113 Serious health condition.
(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

AND

§825.114 Inpatient care.
Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity as defined in §825.113(b), or any subsequent treatment in connection with such inpatient care.

So, although the statute says "inpatient care," the regs say "overnight stay." Oy vey. Bottom line is that, at least in the 3rd Circuit, in order to be covered under FMLA for an inpatient stay, you must have been actually admitted (remember, many ER visits don't count as being "admitted," and you can be stuck there for many hours before being actually admitted, so too bad for you if the hospital has a busy night) in one calendar day and discharged in a different calendar day AND stay at least 8 hours once you're admitted.

You'd think being tortured in the hospital for 14 hours, plus however many hours it took them to admit this poor employee would be enough, but no. And you'd think an employer wouldn't fire someone for being in the hospital, but no.

This is another example of how the laws fail employees on a regular basis.

6 Ways Same-Sex Marriage Will Affect Florida Employees

There are multiple lawsuits pending in Florida challenging the state's ban on same-sex marriage. There's one in Key West, one in Miami, one in federal court in Tallahassee, and there are probably some more out there. It's almost inevitable that the ban on gay marriage will be overturned here soon.

So why does an employment lawyer care about gay marriage? Here are just some of the laws that will affect Florida employees and employers once gay couples can marry:

1. Florida Civil Rights Act: The Florida statute against discrimination covers marital status. And I'm betting plenty of backwards Florida employers will discriminate when their gay employees get married.
2. Family and Medical Leave Act: Finally, Florida gay couples will be able to take leave to care for a sick spouse.
3. Benefits: Gay spouses will have to be included in employee benefit plans such as insurance and pension. That includes recognizing a same-sex marriage as a qualifying event to enroll a spouse.
4. Tax filing status: Married gay employees will be able to change the number of deductions they claim.
5. Privilege: Right now, I have to boot same-sex partners from confidential attorney-client meetings because there's no privilege between same-sex partners. Once they're married, I can finally include them. I hate, hate, hate having to inform gay couples how backward Florida law is on this, so gay marriage will be a welcome relief.
6. Confidentiality provisions: Many severance and other employment contracts have confidentiality provisions that prohibit telling anyone but immediate family or spouse. Married gay couples will finally be able to share this vital information with partners.

I'm keeping my fingers crossed that same-sex marriage will soon be allowed in Florida. I'm absolutely, 100% for it. I look forward to a time when we look back on these times like we look back on school integration - with shame for the years of discrimination, pride that Americans eventually do the right thing and nostalgia.

Are You One Cold (Or Super Bowl Flu) Away From Being Fired?

It's cold and flu season, so you may be sick right now. It's likely you'll be sick at some point this year. Maybe you'll suffer from Super Bowl flu on Monday after too much partying on Sunday (or your boss will assume you partied too much if you call in sick Monday).

So what are your rights? Can you be fired for being out sick? What if you have a doctor's note? Connecticut and six cities (Jersey City, NJ; New York City; Portland, OR; San Francisco, CA; Seattle, WA; and Washington, DC) have paid sick leave laws. Nebraska and California legislators recently introduced bills to require employers to give paid sick leave. If you don't live in any of these places, you could possibly be out of luck.

My latest article at AOL Jobs discusses the legal rights you have if you call in sick, and what to do if you are told you'll be fired if you miss work. Don't forget those flu shots!

Should I Tell My Boss About My Mental Illness? Why You Should Not (And Three Times You Should)

A reader at AOL Jobs recently asked:

I have 7 years tenure with my company with great reviews. My last 6 month review I had met expectations in every area. I am going through a traumatic personal situation. A new manager was hired in October, and she's the one who gave my last review. In January, I disclosed to her I had PTSD. After that she met with me a month later accused me of not working. Took me to regional manager. They said I was making excuses and were disappointed. She recently told me "maybe you can't do this job anymore". She then lied on coaching logs saying I could not do my work. I went out on leave for PTSD. The last day she had me meet her to give me my year review, which stated I was below expectations in every area. When I came back from leave I was put on a performance improvement plan. She continues to lie about my performance. Is there any way to prove discrimination? They put me on an improvement plan for not meeting certain goals, but my counterparts are having the same problems meeting goals. Other counterparts are having even worse issues and are not put on a performance improvement plan. Please advise.

Unfortunately, the stigma associated with any mental illness means most people are afraid to tell their coworkers or boss. When they do, it's all too common to be subjected to sudden criticisms that you never faced before. In this situation, the fact that you had all good reviews before you disclosed your mental illness and were only written up after you disclosed it could be strong evidence of disability discrimination. If you can prove that your performance didn't change, or that your coworkers are failing to meet the same goals as you and aren't being written up, then you should talk to an employment lawyer in your state or EEOC about bringing a disability discrimination claim against your employer.

 In honor of Mental Illness Awareness Week, my latest piece in AOL Jobs covers why you shouldn't disclose a mental illness or disorder to your employer, along with three times you should disclose it. Read more here.

Noncompete Answers: Am I Bound If My Employer Violates FMLA?; Wages Cut Right After Signing; Can They Restrict My Livelihood?

Having received more questions on noncompete agreements than any other issue, I can only assume that more and more employers are imposing these contracts on employees all over the country. There are lots of defenses to them, but defending takes money. I continue to hope that some legislators will wise up and help their constituents escape indentured servitude, or that some attorneys general will start fighting illegal noncompetes with antitrust laws. In the meantime, I'll keep trying to answer your questions. I encourage anyone who is being asked to sign one, or whose ex-employer is trying to enforce one, to contact an employment attorney in your state for advice. Here are my general answers (not legal advice) to some more non-competition agreement questions:

If My Employer Violates FMLA, Am I Still Bound By My Noncompete?

Hi . I am a nurse, licensed in Kentucky. I had worked 6 plus years with a contact agency that was contracted to the state. My question is this - when an agency is contracted to such an entity, do they have to follow the state's policies and protocol for discipline? I had been a very well respected and appreciated employee that had been contracted to the same entity for over 12 years. When I was both working full-time and caring for my dying Father at home, I had periods of tardiness, which was never a past problem. I was ultimately released by both the Vendor and my agency. My question is this - was it not my agency's place to request - on my behalf - FMLA? I did win my unemployment case.Would I still be bound to my former agency's full non-compete ? 

Gloria L.

Hi Gloria. I'm sorry to hear about your father and the loss of your job all at once. As to the noncompete agreement, there's a defense to enforcement called "unclean hands." This defense means that if your employer wants to keep you from working for a competitor, they must have acted ethically and in good faith. If they broke the law or did something wrong to you, then a court might be persuaded not to issue an order that you can't work for a competitor.

As to whether they have to follow your state's policies, that will depend on their contract with the state. Does that get you anywhere in defending against a noncompete agreement? I don't know how, but it's possible maybe you'd have a wrongful termination claim in your state if they were bound by certain procedures.

Now, let's talk about that FMLA claim. You have to notify your employer of your need for FMLA in most cases. That means, when you saw that your productivity was slipping and you couldn't get in on time, you should have asked for FMLA, either regular or intermittent, so you could fulfill your duties as caregiver for your father. They'd have had to grant it based on what you describe. However, you didn't ask. Should they have offered it? It sounds like they were on notice that you were a caregiver and that you were in trouble, so maybe they should have. This might be a FMLA violation. You should talk to a Kentucky employment lawyer. 

Does all of this get you out of the noncompete? Maybe. Good luck!

I Signed, Then My Employer Cut My Wages

I was asked to sign a noncompete, & when I did was informed that my wages were being cut. No wages were specified in the contract, but had I known beforehand, I would not have signed. Also, less than a week after I signed it my hours were cut & have since been cut to zero. I have since signing, been in a hostile work environment & made to feel I'm doing everything wrong. I am now at zero hours. & I also believe I have grounds for a discrimination & sexual harrassment case. 

Tessa M.

Hi Tessa. In some states, continued employment is valid consideration for a noncompete agreement. That means employers in those states can shove an agreement in front of you and say, "Sign or be fired." However, if they knew they were about to cut your wages and then cut your hours to zero, they should have disclosed it before you signed. The defense you may have is fraud.

As I discussed above, discrimination and sexual harassment might also support a defense of "unclean hands." I'd suggest talking to an employment lawyer in your state about these two defenses and any other defenses you have to enforcement of this agreement.

Is It Legal To Restrict My Livelihood?

I work in Texas and I am reviewing a Non-Competition agreement with the following stipulations:

1.3 Non-Solicitation-Non-Competition. Without prior written approval of COMPANY X management, Consultant agrees:
 

(a) For a period of twelve (12) months following the termination of this Agreement or the relationship provided hereunder, Consultant will not, either directly or indirectly, call on, solicit, or induce any Consultant or employee of COMPANY X whom Consultant had contact with, knowledge of, or association with in the course of this relationship to terminate his or her employment with Company X.
(b) For a period of twelve (12) months following the termination of this Agreement or relationship provided hereunder, Consultant will not form or hold an interest in any entity that directly competes with COMPANY X.
(c) During the term of this agreement for a period of twelve months following termination of this agreement with COMPANY X, Consultant shall not solicit or induce, any past or current customer of COMPANY X to cease doing business, in whole or in part, with COMPANY X.

Is this legal to create this kind of document--affecting a persons livelihood for an entire year? If that company lays me off can they stop me from pursuing my line of work?

Would you suggest a strategy for filling out this paperwork?

Steve C.

Hi Steve. It really depends on what work you are doing and what kind of business this is. If you are a chemical engineer developing the new formula for Coke, then I can see how they wouldn't want you to go straight to work for Pepsi or form your own soda company. You have a vital trade secret that they need to protect. They might have a legitimate interest to protect. However, if you're contracted to do their landscaping or waste removal, it's hard to imagine any possible interest they would have to protect other than preventing competition.

An agreement that is solely for the purpose of preventing competition violates antitrust laws. 

Since you're a contractor, you can always say no. If they want you, then you have the power to negotiate more reasonable terms. The time to negotiate is before you sign.

If you have a question on noncompete agreements, discrimination, whistleblowing, employment contracts or any other employment law issue, and don't mind having me answer it publicly, feel free to ask it in the comments section. If you ask me here, you're asking for general information and not for legal advice. The question and answer will be public and will not be covered by attorney-client privilege, nor will it establish an attorney-client relationship. If you need legal advice or have an urgent legal issue that needs to be dealt with, contact an employment lawyer in your state.

Answers to Your FMLA Questions: Employer Questioning Medical Information, Second Opinions, Reduced Schedule

In my continuing quest to answer some questions posted in the comments section of some older posts, I'm answering questions today that were posted in Can My Boss Hold My FMLA Against Me?

When Can My Employer Question My Medical Information?

Hello, I found out that I was pregnant on one day, and told my manager on the next day. I found out about the FMLA forms for prenatal care visits and intermittent FMLA that could be taken for complications during pregnancy by a co-worker several days later. I filled out the prenatal care visit form, and was approved for that. I missed a day due to morning sickness that would not allow me to go into work. I called in prior to my shift starting, citing that it was morning sickness, and my midwife filled out the intermittent FMLA form for it. My employer declined it the first time because it was not filled out appropriately. I went in see my midwife a month after that absence and she went over the form with me and filled it out completely, including a referral to a physical therapist for sciatica that has been caused by my pregnancy.

They contacted the day after I turned it in and told me that they couldn't approve it for the following reasons: 1) I had not been seen by a doctor to treat me for severe dehydration due to morning sickness and 2) I had not been prescribed any anti-nausea medication. The physical therapy was also declined because 1) I had not set up any appointments yet (I was waiting until I was approved, so that my job was protected. My company has a very strict attendance policy) and 2) They said that they cannot accept a mere referral from the doctor. My case manager said she would submit it for a peer review. When I hadn't heard anything back from them for a few weeks, I called to see if I could find out the status. I was told that my case manager had made a note in the case (that was not discussed over the phone when we talked a few weeks ago) that the peer review could not take place until I had officially scheduled an appointment for the physical therapy.

I am nervous that if I do schedule the appointment, take the appointment, it may still come back declined, which could potentially leave me with no job. There had been no further contact with me to indicate that they were waiting on action from me. They had also indicated that they could not approve the day I missed for morning sickness because they are unable to approve absence for morning sickness retroactively, and that my doctor would have had to fill out the FMLA form prior to me missing that day and provide a medical statement to prove that the morning sickness was severe enough to warrant FMLA.

I am wondering if this is something employers are able to do? In my reading of the FMLA, incapacity due to severe morning sickness does not have to be confirmed or seen by a doctor. And the fact that my doctor confirmed that I had been having morning sickness for a while before then should have been enough; as well as the fact that the sciatica was placed on the FMLA form as being caused by pregnancy. Are they able to deny my FMLA request due to the reasons that they cited, or am I way off base in my understanding of the FMLA? 

Koifishy 

Hi Koifishy. Incapacity due to morning sickness is definitely a FMLA-protected medical condition. A nurse-midwife is a "health care providers" whose medical certification should be accepted under FMLA. The employer can't demand that it be done by a specific type of provider. Here's what the Department of Labor says about acceptable health care providers:

Health care providers who may provide certification of a serious health condition include:

• doctors of medicine or osteopathy authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices;
• podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice under State law;
• nurse practitioners, nurse-midwives, and clinical social workers authorized to practice under State law and performing within the scope of their practice as defined under State law;
• Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
• any health care provider recognized by the employer or the employer's group health plan's benefits manager; and,
• a health care provider listed above who practices in a country other than the United States and who is authorized to practice under the laws of that country.

If your employer requests a certification, you are generally supposed to provide it within 15 days of their request. It has to be complete and sufficient and turned in on time. As to the "retroactive" certification, most FMLA certifications have some retroactive aspects. If you're hospitalized for a medical emergency, you obviously can't get a certification in advance of the hospitalization. Same with most illnesses. Normally, the medical practitioner will issue a certification that says the condition started before the certification. Otherwise, how would a certification ever get done? Their claim makes no sense. However, you did wait a month to get the certification. They are supposed to request the certification, so if you didn't get it done within 15 calendar days, that may be what they are talking about.

They're also contradicting themselves. With the referral to a specialist, they're complaining you haven't gone yet. Since you're supposed to give advance notice of the need for FMLA if you can, giving advance notice of a specialist appointment is exactly what you are supposed to do. It sounds like this employer is doing everything they can to interfere with your FMLA rights. FMLA interference is illegal. I suggest talking to an employment lawyer in your state about your rights.

My Company Wants To Send Me To a Doctor For a Second Opinion

My doc just filled out my FMLA paperwork and I received the paperwork back from my company saying I was approved for FMLA and I just received a phone call today saying I have to see a independent evaluation. Can they do that if I have already been approved? Also they said my doc did not give enough information

Peepers 

Hi Peepers. I'm sorry to say that your employer is allowed to ask for a second (and third) opinion. Here's what the Department of Labor says about second opinions:

An employer may, at its own expense, require the employee to obtain a second medical certification from a health care provider. The employer may choose the health care provider for the second opinion, except that in most cases the employer may not regularly contract with or otherwise regularly use the services of the health care provider. If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding. The third health care provider must be approved jointly by the employer and the employee.

Do I Need FMLA To Get a Reduced Schedule?

I have chronic insomnia and am on FMLA. Where I work we are on 10 hr. days (5am-3:30pm) 5 days a week. My doctor wants me on 8 hr.days (6:30am-3pm) for several months to see if this different work schedule works. My question, do I have to have accumulative FMLA time to be approved?

Cathy H.

Hi Cathy. You might be able to use FMLA intermittent leave to get a reduced schedule. The other thing you might want to do is ask for an accommodation for your disability under the Americans With Disabilities Act. A reduced schedule could be something your employer would have to accommodate. In order to deny the accommodation, they'd need to show that accommodating you would be an undue hardship. That would depend on your job, but in a big enough company they'd have a hard time showing such a hardship.


If you have a question on FMLA, discrimination, whistleblowing, employment contracts, non-competition agreements or any other employment law issue, and don't mind having me answer it publicly, feel free to ask it in the comments section. If you ask me here, you're asking for general information and not for legal advice. The question and answer will be public and will not be covered by attorney-client privilege, nor will it establish an attorney-client relationship. If you need legal advice or have an urgent legal issue that needs to be dealt with, contact an employment lawyer in your state.

Can You Be Fired If You Are Sick After Your Vacation? Probably

I returned from a lovely three week trip to Italy with the souvenir that keeps on giving: pneumonia. It started out with sniffles. By Monday afternoon, I had a fever. Tuesday, I was coughing. On the Fourth, instead of enjoying barbecue and fireworks, I ended up at the urgent care. He counted back the days of incubation and thinks I got it somewhere on beautiful Lake Maggiore: maybe the public ferry or at a marketplace. Exposure to illness can easily happen when you travel: the airport, bus, train, or any public place can be full of contagion.

I asked the doctor if I could go to work Thursday and he said absolutely not. I was contagious and had to stay home. I couldn't go back until Monday. He said he'd write me a note.

Fortunately, I didn't need a note. I'm my own boss. And I'm not heartless enough to go in and contaminate my staff. But I wondered: what would happen to my clients if they came back from their vacations sick?

The answer is sad. They're probably fired or disciplined. I have seen this time and again. Many bosses are royally ticked if you return from your fun in the sun only to say you're too sick to work. Contagion be darned. They don't want to hear excuses. They want you in the office.

There are a few laws that may protect you if you're sick right after vacation. Here are some:

Family and Medical Leave Act: If your company has at least 50 employees within 75 miles of your office, and you've worked at least a year, you may be covered by FMLA. This means if you miss work for a serious medical condition requiring medical treatment, you must be restored to the same or an equivalent position when you return. It's a bit tricky, but you should notify HR as soon as you can if you think you qualify for FMLA. There are forms for your doctor to fill out. While the company is supposed to tell you if you report an illness that should be covered, many don't, either because they don't understand the law or don't care.

Americans With Disabilities Act: My pneumonia is probably not a covered disability under the ADA. But if you have a chronic respiratory condition or some other medical condition that the pneumonia exacerbates, then you might be protected under ADA.

Health Laws: If you work in an industry that has laws prohibiting you from working when you have a communicable illness (such as health care or food service) then you may be protected as a whistleblower if you refuse to violate the law and come in to work.

OSHA: If you are contagious, you might be protected under the OSH Act, which requires that employers provide a safe workplace. And if your company makes someone contagious come in, you may be entitled to refuse to work with them (but beware: the ability to refuse to work is limited, so contact OSHA before you take drastic measures).

My recommendation? Unless you're flat on your back or in the hospital after your vacation, go in sick. If you're contagious with something dangerous, such as swine flu, plague, or smallpox (as opposed to the common cold or flu), get a doctor's note and submit it to your supervisor and HR. If you are still ordered to come to work, go in, even if you have to go in on a stretcher. Don't give them an excuse to say you were insubordinate. (A well-placed cough or two in the jerky boss's direction might be called for in that case).

Even if your boss tells you to stay home, that doesn't mean they can't hold it against you later. Your review might say you had excessive absences or question your loyalty. If you aren't legally protected, there isn't much you can do except to try not to miss any more work for awhile (and don't put in for another vacation for a long time).

Can Your Boss Fire You For Taking Vacation?

It’s summer, and thoughts of vacation are in the air. You shouldn’t have to worry about your job while you’re on vacation. Or should you? A recent study shows that 70% of Americans are leaving some or all of their vacation days unused because they are afraid of losing their jobs.

You’ve earned three weeks of vacation, and wow, did you work for it. You put in for your three weeks, got it approved, and planned your trip. You have non-refundable tickets to your dream cruise. A week before you leave, you mention that Jane will be covering for you while you’re gone. Your boss says, “Oh, you were serious about taking vacation?” You nod, meekly. You ask a coworker what she thinks he meant. You find out that the last three people who went on vacation were fired.

The short answer is: yes. There is no law requiring an employer give you any paid vacation. I hear stories all the time of people fired a few days or a week into a scheduled vacation. Even worse, they’re fired the day before they’re scheduled to leave. They were counting on the vacation pay to cover the cost of the trip. Now they’re left in the lurch.

Vacations are good for you and good for employers. They keep morale higher, prevent employee burnout, reduce stress, and keep you healthier. The good news is that most employers won’t fire you for taking your vacation.

Still, the fear of being fired for taking vacation is justified. If you live anywhere but Montana, you’re probably an at-will employee. That means you can be fired for any reason or no reason at all. Do you have any rights? Yes, but not many.

Here are some circumstances where it would be illegal to fire you for taking a vacation: 

Family and Medical Leave: If you have scheduled surgery, are pregnant with a due date, or have an immediate family member who has scheduled medical care, you might be protected. If you put in for FMLA leave, your employer must let you use your paid sick and vacation time first before they put you on unpaid leave. If you’re fired because you used your vacation for FMLA leave, you may be protected. 

Contract: If your employment contract says you’re entitled to vacation, then firing you for taking it might be breach of contract. 

Employee Welfare Plan: If the employer has an established vacation policy for all employees, then it might be an “employee welfare benefit plan” that is covered under ERISA. That means it might be illegal to retaliate against you for exercising your right to take your vacation benefit. 

Union contract: If your union’s collective bargaining agreement provides for your vacation benefits, you might be able to grieve any termination that violates your union contract. 

Discrimination: The company can’t discriminate based on race, age, sex, religion, color, national origin, disability, genetic information, or age in granting and denying vacations. Some states have other protected categories such as sexual orientation, marital status, and domestic violence victims. They can favor your boss’s vacation over yours though. If the boss’s vacation conflicts with yours, even if yours was preapproved, they can renege on the approval. 

State law: Some states provide other protections. When in doubt, talk to a lawyer in your state about your rights.

Other than these limited rights, you can absolutely be fired for taking your vacation or to prevent you from getting a paid vacation. Here’s some more information you need to know about your rights while taking vacation: 

Wrongdoing discovered: If your employer discovers wrongdoing or even poor performance while you’re on vacation, even if you have a protected right to take it, they can fire you for the wrongdoing they discover. That means if you embezzled and they find out because someone covered for you while you were out, or if you didn’t do a key assignment before you left, then you might not have a job to come back to. 

Layoff: Even if you have protected vacation rights, if there is a genuine layoff at your company, they can probably include you in the layoff. 

Pay after termination: If your employer has a “use it or lose it” vacation policy (some states prohibit “use it or lose it” vacation policies), you probably have no right to be paid for your vacation when you’re fired. However, if your employer lets people accrue their benefits and get paid out when they leave, you are probably entitled to be paid your vacation time when you leave. It’s an earned benefit. 

Last minute demand to cancel: Sometimes the boss will demand you cancel your plans at the last minute. Maybe an emergency comes up, or she just decides she can’t live without you. If you refuse and take your vacation anyhow, you can be fired for insubordination or job abandonment.

Should it be legal to fire you for taking your earned vacation? No. But it probably is. The United States is the only industrialized nation that doesn’t have a law requiring paid vacation. One in four Americans receives no paid vacation.

So take that trip to Europe or your dream cruise. Enjoy! You may have more free time than you expected when you get back.

Donate A Kidney To Your Boss? That’s A Firing

Debbie Stevens, gave her kidney to a man on the donor list so her boss could secure a match. Was she rewarded? Promoted. Nope. This is corporate America. You can be fired even if you literally give a piece of yourself for your job.

 Instead of rewarding her, the boss started pressuring her to come back to work even though she didn’t feel well and was still recovering. Once she got back, they took away her overtime, demoted her, and transferred her 50 miles from her home. She hired a lawyer to try to resolve the matter. The lawyer wrote a letter, and she was fired.

 I know I’ve talked about at-will employment and being able to legally fire employees for any reason or no reason at all. Does that mean you can be fired after you donate your kidney to your boss? Not necessarily. Here are just some of the claims she might have:  

Discrimination: If the employer failed to accommodate her recovery and then retaliated when she needed extended time off, she might have a claim under the Americans With Disabilities Act. Under that law, the employer must grant a reasonable accommodation, including extended leave, unless it can show an undue hardship. Retaliating against her after her return with a pay cut, demotion and transfer would also likely be a violation.  

Family and Medical Leave: If she was out for 12 weeks or less, then she’s likely entitled to recover under the Family and Medical Leave Act, which requires that she be restored to the same or an equivalent position once she returns from leave. Unless there were substantial cutbacks while she was gone, they’ll have a hard time arguing the position was equivalent. Even a distant transfer without a demotion is probably not considered equivalent. If she was out 12 weeks and one day or more, she’s probably out of luck on FMLA claims.  

Fraud: Did the boss promise continued employment or even favoritism if she gave of herself? Maybe. If that happened, she might claim fraud.  

Breach of contract: If the boss offered her anything specific, such as continued employment or a promotion, in exchange for the transplant, there might be a breach of contract claim. Although contracts in exchange for body parts may well be against public policy and unenforceable.

Personally, I think the courts should allow her to repossess. But since the recipient wasn’t involved in all this, she’s probably out of luck with that. In a perfect world, the court would have the power to make the company find her a replacement kidney to make her whole.

This isn’t even the worst firing I’ve ever heard of, but it’s up there. The employer should be ashamed, but I’m sure they’ll fall back on the old canard of at-will employment.

 To borrow from Joseph Welch (a victim of McCarthyism), I have to ask the employer what I hope the jury will ask: At long last, have you left no sense of decency?

Supreme Court Wants State Employees To Die

Okay, maybe my headline isn’t quite what they said, but the subtext is there. In a case decided on March 20, 2012, the men in black said that, for state employees, they can take FMLA leave to care for family members, but not for themselves. Huh?

The reasoning is that, because states are generally immune from suit unless they waive their immunity, Congress had no right to pass the Family and Medical Leave Act unless it was to address sex discrimination under the 14th Amendment. The men on the court found that, to the extent FMLA allows time off to care for yourself, it addresses “a concern for discrim­ination on the basis of illness, not sex.”

The women on the court, along with Justice Breyer, had something to say about the decision. “In so declaring, the plurality undervalues the language, pur­pose, and history of the FMLA, and the self-care provi­sion’s important role in the statutory scheme. As well, the plurality underplays the main theme of our decision in Hibbs: ‘The FMLA aims to protect the right to be free from gender-based discrimination in the workplace.’” They went into a detailed analysis of the stated purpose of FMLA, along with the legislative history. Throughout, they point out, Congress says FMLA addresses the issue of discrimination against women in the workplace. Specifically, it was to address the need for maternity leave without specifically pointing to pregnancy. “[T]he self-care provision, 29 U. S. C. §2612(a)(1)(D), prescribes comprehensive leave for women disabled during pregnancy or while recuperatingfrom childbirth—without singling out pregnancy or child­birth.”

The dissenting Justices give specific examples of women who appeared to testify before Congress to relay stories of how they were fired after taking maternity leave.

The solution the court offers? Maryland can pass its own law similar to FMLA and waive its sovereign immunity. I won’t hold my breath.

What did Maryland have to say for itself? “’[A] state’s refusal to provide pregnancy leave to its employees,’ Maryland responds, is ‘not unconstitutional.’” Whoa. Makes me glad I decided to move. Way to go, Maryland. Let’s fire the new moms!

For shame, Maryland. For shame, Supreme Court.

So much for the “family values” branch of the court. Now, let’s watch them gut health care altogether. Then we can all die unless we’re employed and our employer graces us with medical coverage.

Hm. I wonder who will do the scut work once all the poor people are dead. Maybe those robes can double as a dusting cloth.

What You Need To Know About Missing Work Due to Illness

Know your employer’s sick leave policy. Most employers require that you call in as soon as you know you won’t make it. No law requires paid sick leave.

Family and Medical Leave: applies if you have a serious medical condition and need several days off, or need intermittent leave for treatment.

Accommodations: if you have an illness that qualifies as a disability, you might be entitled to accommodations that will enable you to perform all the duties of your job.

Excessive absenteeism: unless you qualify for FMLA leave or have a disability for which you are seeking accommodations, your employer can fire you for any reason, including absenteeism. Know what they consider excessive. If you have to come to work sick, that’s better than losing your job.

Donna’s tips:

a. Lots of people express surprise that they were fired after being sick. “But I had a doctor’s note!” they say. A doctor’s note won’t help you unless you qualify for FMLA leave or an ADA accommodation. 90% of life is just showing up. (Woody Allen). Your employer is entitled to have you at work.

b. If you are contagious, then your employer requiring you to come in anyhow might be an OSHA violation. You can point this out, but don’t be insubordinate.

c. If ordered to come in, then rent a stretcher if you have to. Unless going to work endangers your life, comply with the boss’s order to come to work. Appeal to HR if you can, but don’t lose your job.

Can My Boss Hold My FMLA Against Me?

I received this question from calistair:

I have MS, every 4th Friday I have to take off work for a treatment. I recently asked to take 2 hours of PTO on a Friday afternoon. My supervisor responded via email with "The remainder of the group has covered Fridays for you". When asked twice via email what she meant, she came to my desk and verbally stated "On the Fridays of your infusions" I said "Oh no, that's under FMLA". This is 2nd time she has used my FMLA time against me. The first time, we were discussing the department budget and she told me that my reduced work hours (32.5/week) was causing others to work OT, which in turn has caused our department to be over budget. What can I do?

Now, obviously the first thing I advise is to talk to an attorney in your state. I’ll give you some general information on FMLA, which will hopefully help point you in the right direction in the meantime.

Based on your question, it looks like you’re on intermittent leave. FMLA allows up to 12 weeks of total leave in a calendar year, so if you need every 4th Friday off you are using 13 days of FMLA, roughly 2 ½ weeks. You are certainly covered under the law for this, assuming the employer has at least 50 employees and you’ve been there at least a year. Some states also have medical leave laws which might provide more protection.

Here’s what an employer can and can’t do while you’re on FMLA leave:

PTO use: Your employer may require you to take paid leave concurrently with their unpaid FMLA leave. All forms of paid leave are treated the same. Paid leave taken concurrently with FMLA leave could include vacation time, paid personal leave, and paid sick and medical leave. The employer may waive any procedural requirements for the taking of paid leave and you are always entitled to their unpaid FMLA leave even if you do not meet the employer’s requirements for taking paid leave. If the employer is not making you use your PTO for the intermittent leave, you should be entitled to use it like anyone else.

Retaliation: The employer is not allowed to use your FMLA leave against you. They can’t write you up for poor attendance, ding you in performance evaluations for excessive absenteeism or for failing to perform while you were on leave, demote you or fire you for taking leave. However, if they discover performance issues or dishonesty while you’re on leave (say a coworker covering for you finds out you embezzled millions), then they can fire you or discipline you. If the supervisor is retaliating, you probably want to report this to HR, in writing, as a “Formal Complaint of FMLA Retaliation.”

These are the two parts of FMLA that seem to apply to your situation. Other things you might need to know about FMLA are:

Perfect attendance: Employers may deny you a perfect attendance award for taking FMLA leave if employees taking non-FMLA leave are treated the same.

Contact with health care provider: Your employer may communicate with your health care provider to get information required by the FMLA certification form. The employer’s designated representative to communicate with the health care provider must be a health care provider, human resource professional, leave administrator, or a management official, but cannot be the employee’s direct supervisor. Employers are prohibited from asking health care providers for information other than what is required by the certification form. If the employer determines that a medical certification is not complete or is insufficient, the employer must provide written notification to you of what information is lacking and give you seven calendar days to cure the issue. Employers may request a new medical certification each leave year for medical conditions that last longer than one year. Employers may request recertification of a continuing condition every six months.

Fitness for duty: An employer may require the certification to address your ability to perform the essential functions of your job. In the event that reasonable job safety concerns exist, an employer can require a fitness-for-duty certification before you may return to work when you take intermittent leave.

There are many more requirements and responsibilities under FMLA that may apply to you. These are some of the most common issues. I hope this helps. Good luck!