Posts Tagged ‘FMLA’

As discussed before, a pregnant employee can face many different legal issues with her employer that impact many different laws including the Pregnancy Discrimination Act (PDA), The Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA) and possibly the Genetic Information Nondisclosure Act (GINA). Pregnant employees also need to know about their short term and long term disability insurance plans and how they interact with these laws. Most of these laws clearly cover natural pregnancy and adoption, but what about birth by surrogate?

That issues is now being addressed in a recently filed case. A US businesswoman is suing her employer after she was allegedly denied maternity leave following the birth of her twins through a surrogate mother.

Kara Krill, a clinical business manager at the Massachusetts-based company Cubist Pharmaceuticals, is claiming breach of contract, breach of good faith and fair dealing, discrimination on the basis of her disability and gender, and negligent misrepresentation by the company. She is seeking an injunction against Cubist, as well as compensatory and punitive damages.

Krill developed Asherman’s Syndrome – a condition which rendered her infertile – following the birth of her first child. When she and her husband decided to have a second child they used a surrogate. The resulting twins are biologically related to both Krill and her husband.

Following her first pregnancy, Krill was given 13 weeks of paid leave under the company’s maternity leave policy. However this time Krill says she was informed that she would only be entitled to five days of paid leave and up to $4,000 in expenses – as is offered to adoptive parents. Paternity leave under Cubist’s policy is also five paid days.

In her letter of complaint to Cubist, Krill stated: ‘But for my physical disability, I would be receiving the paid maternity leave offered by Cubist. Accommodating my disability would not require [Cubist] to provide me with any more benefit than other mothers’. Furthermore, she complained of discrimination and verbal abuse by her supervisor in the workplace due to her disability and surrogacy arrangement.

What do you think about Krill’s situation?

If you or someone you know is pregnant, and are not sure how to navigate the maze of legal issues that face you, feel free to call Scott Behren and the Behren Law Firm for a free consultation.


We have blogged in the past about the Family Medical Leave Act which allows you to take up to twelve weeks off, of unpaid leave, to address a family pregnancy, adoption, illness or death. Upon returning to work, your employer is required to make sure your job or one substantially the same is still available. One problem, though, is that the Federal law only covers employers with at least 50 employees. This can be problematic for many employees of smaller companies with no comparable state law protections, case in point, Claudia Rendon of Philadelphia.

Claudia Rendon, 41, of Philadelphia, said her employer, Aviation Institute of Maintenance, fired her after she took time off to donate a kidney to her son.

Rendon, who worked for a year and a half in the school’s admissions office, said she notified the school that she planned to take leave on July 19 to undergo kidney transplant surgery on July 21 at the Hospital of the University of Pennsylvania on behalf of her 22-year-old son, Alex, whose kidney failed last January. After extensive testing in early July, Rendon was found to be a match.

Kidney transplant surgery normally requires at least six to eight weeks of recovery time, and Rendon said the Aviation Institute agreed to give Rendon unpaid leave until Sept. 1. Rendon told that on her last day of work before the surgery, her manager promised Rendon she would have her job upon her return, but one hour later, asked her to sign a letter acknowledging that her job was not secured.

“They said, ‘If you don’t sign this letter, you are abandoning your job and quitting,’” Rendon told “I said, ‘I am not abandoning my job. I am saving my son’s life.’”

The fact that the FMLA does not cover Ms. Rendon does not necessarily mean she is out of luck, there is also a possibility that she can bring claims under the Americans with Disabilities Act or relevant disability insurance policies.

If you find yourself wrongfully terminated, speak to an employment lawyer to learn your legal rights. Feel free to call Scott M. Behren and the Behren Law Firm for a free consultation.

In the interim, everyone should send hate mail to the wonderful people at Aviation Institute of Maintenance in Philadelphia.


I have previously blogged about discrimination against service dogs as a violation of the ADA and state statutes.

In many states, condo associations are giving hard times to disabled persons who have service dogs, especially where the association has no pet rules. Florida Statutes 413.08.  Under the Florida Statutes, at subsection (2) An individual with a disability is entitled to full and equal accommodations, advantages, facilities, and privileges in all public accommodations.  Moreover, under subsection (3) An individual with a disability has the right to be accompanied by a service animal in all areas of a public accommodation that the public or customers are normally permitted to occupy.  It is interesting to note also that the statute mandates that an association may not charge a surcharge or pet deposit for a service dog even if normally charged for a pet.

However now there is a new wrinkle. What if a person’s service dog is one of the breeds considered to be a danger to the public? City officials in Denver and in the neighboring suburb of Aurora are being sued over their enforcement of dog breed bans. The suit claims the bans violate the Americans with Disabilities Act.

Aurora resident and Vietnam veteran Allen Grider is one of the litigants. He suffers from post-traumatic stress disorder and claims his 8-year-old trained service dog, Precious, is essential in helping him cope with his disability. In 2009, Aurora officials seized Precious under the city’s 3-year-old pit bull ban. Though city officials eventually returned Precious to Grider, the reunion came with restrictions, including muzzling the dog in public. Grider and his lawyer, Jennifer Reba Edwards, say that the restrictions make it impossible for Precious to work as a service dog, and that they violate the ADA. The lawsuit is still ongoing, but I will be sure to keep you posted on the final result.

If you are having problems due to your service dog or are otherwise being discriminated against due to your disability, feel free to call Scott M. Behren and the Behren Law Firm for a free consultation on this matter.


In Florida and most other states, where an employee quits his/her job, they are typically not entitled to recover unemployment benefits. The exception to this rule is where an employee quits based upon good cause attributable to the employer.

Believe it or not, in a case in Miami, a female employee quit her employment based upon the sexual harassment of her employer, and sought unemployment thereafter. Florida unemployment refused her unemployment benefits questioning whether or not she was sexually harassed because she did not go to the police or seek counseling. The employee claimed that she tolerated the actions of her employer for a while because she needed her job, but could not tolerate it any longer and quit.

The Third District Court of Appeal in Miami, thankfully, ruled that this employee was entitled to her unemployment benefits. The Court ruled, “Additionally, sexual harassment can continue for several years before the victim makes public her complaint . . . . Considering a job is usually a person’s economic lifeline, the claimant’s failure to contact outside authorities regarding her complaint cannot be called unreasonable or inherently improbable.”

The case is 940 Lincoln Road Enterprises v. Margarita Hernandez.

If you are refused unemployment benefits by your employer or the unemployment office, seek the advice of an employment lawyer. There are many deadlines to be observed to protect your legal rights so don’t let them slip by. Feel free to call Scott Behren and the Behren Law Firm with questions on your unemployment benefits.


The Indian-American owner of two Indian restaurants in the Los Angeles area has been found violating the minimum wage act, following which the US Department of Labor has recovered USD 92,870 in back wages for 22 employees.

The two establishments owned and operated by Chandrakant Patel are Jay Bharat Foods Inc, doing business as Jay Bharat, and Standard Foods LLC, doing business as Standard Sweets and Snacks.

“It is against the law to not pay workers at least the minimum wage,” said Priscilla Garcia, the director of the Wage and Hour Division’s West Covina District Office.

The press release was issued in Hindi and English. Investigators found that employees of both restaurants were required to work an average of 55 hours a week and paid “straight time” wages, rather than time and one-half their regular rate of pay, for hours worked in excess of 40 per week, as required by the FLSA.

Additionally, accurate records of employees’ work hours and wages were not kept, in violation of Fair Labor Standards Act (FLSA) record-keeping provisions.

After conducting employee interviews and reviewing payroll records, investigators determined that Jay Bharat owed a total of USD 41,428 in minimum wage and overtime back wages to 12 employees and Standard Sweets and Snacks Restaurant owed USD 53,442 in minimum wage and overtime back wages to 10 employees.

Patel agreed to pay all back wages due to the affected employees and committed to maintaining future compliance with federal minimum wage, overtime and record-keeping requirements, the Department of Labor said.

The FLSA requires that covered employees be paid at least the federal minimum wage of USD 7.25 for all hours worked, plus time and one-half their regular rates of pay, including commissions, bonuses and incentive pay, for hours worked beyond 40 hours per week.

If you believe you are not being paid the overtime or regular pay you are owed, call Scott Behren and the Behren Law Firm for a free consultation about your rights under the FLSA.


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.


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.




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.


Many of you man know that if you your employer has at least 50 employees and you have been a full time employee of the employer for 12 months that you may be entitled to Family Medical Leave Act leave in the event of your serious health condition or that of one of your relatives. A new Federal Court opinion has indicated that an employee may not only take that FMLA leave, but should not be pestered about when they will return to work.

A U.S. District Court for the Western District of Arkansas opinion dismissed Howard Memorial Hospital’s motion for summary judgment and concluded that a jury should be presented with the Family and Medical Leave Act interference claim made by a hospital employee who said she felt pressured to return to work during her medical leave.

In the case, Regina Terwilliger, a former Howard Memorial Hospital housekeeper, claims that her supervisor contacted her on a weekly basis to ask when she would return to work after undergoing back surgery. One pivotal phone conversation revolved around Terwilliger’s work status, with the housekeeper asking if she was at risk of losing her job while she was at home recovering. During that conversation, Terwilliger’s supervisor responded to her questions by saying that she should return to work “as soon as possible.” Terwilliger decided to cut her medical leave short and returned to work a week early. A few weeks after returning to work, the hospital fired Terwilliger, alleging she stole from another hospital employee. Terwilliger says she was fired for taking FMLA leave and asserts that the hospital deprived her of the act’s full benefits by pressuring her to return to work early.

“Interference includes discouraging an employee from using FMLA leave,” the district court wrote.

If you have questions about your rights under the Family Medical Leave Act or FMLA, call Scott Behren and the Behren Law Firm.