Archive for March, 2011

In Tayag v. Lahey Clinic Hospital, Inc., the U.S. Court of Appeals for the First Circuit found that an employee’s seven-week leave of absence to accompany her husband on a “spiritual healing trip” did not constitute medical care within the meaning of the Family and Medical Leave Act (FMLA).

In June 2006, employee requested a seven-week leave to assist her husband while he traveled to the Philippines on a “spiritual healing trip.” For this longer leave of absence, Lahey required Tayag to provide a note from her husband’s primary care physician detailing the need for Tayag to accompany him on the trip. Rather than submitting the requested documentation from her husband’s physician, however, Tayag produced a note from her own doctor, which stated that Tayag should receive time off to accompany her husband to the Philippines.

On August 8, 2006, after the Tayags had already left for their trip, Mr. Tayag’s cardiologist submitted a certification form to Lahey indicating that, in fact, Tayag did not need to accompany her husband on the trip. Lahey attempted to contact Tayag to inform her that her leave was not approved, but Tayag did not respond. On August 18, 2006, Lahey terminated Tayag’s employment.

While in the Philippines, Mr. Tayag did not receive any conventional medical treatment. Instead, the Tayags attended Mass, prayed, and spoke with a priest and other pilgrims at the Pilgrimage of Healing Ministry at St. Bartholomew’s Parish. Tayag and her husband also spent time visiting other churches, and seeing family and friends. Tayag claimed that she assisted her husband throughout the trip.

In August 2008, Tayag sued Lahey in District Court, alleging that Lahey terminated her employment in violation of the FMLA. The Court resolved the case in Lahey’s favor, finding that Tayag’s trip was not “protected” under the FMLA because it was effectively a vacation. Tayag appealed to the First Circuit, which reaffirmed that decision, finding that the FMLA does not protect the type of “healing” trip taken by the Tayags.

In deciding this issue, the First Circuit looked to the express language of the statute and found that the concept of “medical care” did not encompass such a trip. The Court then examined the law’s treatment of faith healing, which considers Christian Science practitioners to be healthcare providers to the extent that they are “others capable of providing healthcare services” within the meaning of the regulation. Although Tayag argued that the faith-healing exception is unconstitutional because it distinguishes between different religions, the First Circuit found her briefing on this issue to be so cursory that it considered the argument waived. Accordingly, the Court found that the faith-healing exception did not apply to Tayag’s claim and that the FMLA did not otherwise cover “healing pilgrimages.” Moreover, the First Circuit found that Tayag’s failure to provide adequate certification for her FMLA leave was independently sufficient to affirm the District Court’s decision to award summary judgment in the employer’s favor.

If you require legal assistance with your legal rights under the Family Medical Leave Act, feel free to contact Scott Behren and the Behren Law Firm for a free consultation.

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The way that some McDonalds employees in West Virginia were being treated makes me want to grimace (and I’m not referring to the big purple guy).

Three former employees are suing McDonald’s after they claim it violated the Fair Labor Standards Act for failing to pay minimum wage to employees.

Richard Estes, Gary M. Martin Sr. and Jeremy Thompson were employed at McDonald’s, according to a complaint filed Feb. 24 in the United States District Court for the Southern District of West Virginia.

Estes was employed from Aug. 1, 2006, until Nov. 1, 2008; Martin was employed from Dec. 1, 2008, until March 18, 2010; and Thompson was employed from June 1, 2009, until Dec. 14, 2009, according to the suit.

The former employees claim McDonald’s knew or should have known that its employees were illegally not paid minimum wage. They also claim they frequently worked more than 40 hours per week, but were never paid wages for hours actually worked in excess of 40 hours per week.

The defendant made several wage and hour violations, including telling the manager that employees were not to be paid for more than a set number of hours each week; for taking employees “off the clock,” when that set number of hours were met; requiring employees to work off the clock for up to or more than 40 hours per week; and requiring employees to work off the clock and not paying overtime, according to the suit.

If your employer is making your work off the clock, not paying you the minimum wage and not paying your for hours of over 40 hours per week, you may be owed additional wages and overtime. Feel free to call Scott Behren and the Behren Law Firm for a free consultation.

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CHECK OUT THIS POWERPOINT WITH ALL OF THE BASIC AND NOT SO BASIC INFORMATION YOU NEED TO KNOW ABOUT THE FAMILY MEDICAL LEAVE ACT (FMLA).

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Under Florida law, the general rule is that an employee who quits their job is not entitled to receive unemployment benefits. However, there is an exception to this general rule where the employee left with good cause attributable to the employer.

Dennis Martinez was a full time car salesman for Ford Midway Mall. Martinez was originally hired on a commission basis, but some time into his employment, his position was changed to where he received a draw against his commissions. When business declined and he was earning no commissions, based upon the employer draw, he would owe the employer money each week. As of the date of his resignation, Martinez owed over $2,000 to his employer due to these draws. Martinez expressed his dissatisfaction with this arrangement to his employer and resigned.

The unemployment referee determined that Martinez voluntarily quit without good cause of the employer. He further decided that because Martinez agreed originally to this draw policy, that he could not contest it a year later.

The Third District Court of Appeal reversed the determination of unemployment. The Court held that the unemployment laws “provides that an individual is not disqualified for unemployment benefits where the individual has “voluntarily left work with good cause attributable” to the employer. § 443.101(1)(a), Fla. Stat. (2009). “Good cause” includes cause attributable to the employer, which “as contemplated by the unemployment compensation law, describes that which would drive an average, able-bodied worker to quit his or her job.”

The Court held that the auto dealer was in violation of the Fair Labor Standards Act (“FLSA”) and the Florida Minimum Wage Act because Martinez was not getting paid the minimum hourly wage for the hours he was working for his employer. The Court held that the draw agreement used by the employer was in violation of the FLSA and Florida Minimum Wage Act. Moreover, the Court held that merely allowing them to pay under the draw policy, for a period of time did not result in a waiver of his legal rights under the FLSA.

The Court held that due to the employer’s violations of the FLSA and Florida Minimum Wage Act, Martinez had left his employment due to good cause attributable to the employer. The Court reversed the decision of unemployment and awarded Martinez his benefits.

The Opinion of the Third District Court of Appeal is here.

If you have questions about your right to receive unemployment benefits, feel free to call Scott Behren and the Behren Law Firm to discuss your legal rights.

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