BIA REPORT
Employment Law Update
State and federal developments of interest to New Hampshire employers
April 2003 issue:
By Andrea Johnstone and Anne Scheer*
National Legislation -
FMLA and Comp Time
On February 5, the tenth anniversary of the Family Medical Leave Act (FMLA), both Democrats and Republicans introduced bills marking the occasion. For the Democrats, Senator Dodd introduced The FMLA Expansion Act (S. 304). This Act proposes to increase the number of employers required to provide FMLA leave, expand the circumstances under which an employee can qualify for FMLA leave and provide grants for states to pay employees for six weeks of their twelve weeks of FMLA leave.
Dodd's bill lowers the threshold for FMLA coverage from companies having 50 or more employees to companies having 25 or more employees. It is predicted that this change would increase the number of employees covered by FMLA by 13 million employees. The bill also adds domestic violence as a qualifying circumstance for leave and up to 24 hours per year for attendance at an employee's children's school activity such as parent-teacher meetings.
A grant provision under Dodd's bill would allow states to provide up to six weeks of paid FMLA leave for birth, adoption or care of a sick family member. In order to qualify for a grant, a state would have to provide 50% in matching funds. Under the bill, states would have the option to provide these matching funds through direct grants or by tapping unemployment insurance funds. Business groups are opposed to all aspects of this legislation. And, Senator Dodd has conceded that getting this bill passed will be "a tough hill to climb." Senator Dodd noted that the original Family Medical Leave Act took many years of legislative wrangling before being passed.
For the Republicans, Senator Judd Gregg of New Hampshire introduced legislation to allow private sector employees to opt to take time off in lieu of overtime pay. (S. 317) Labor Secretary Elaine L. Chao hailed Gregg's legislation stating that "The legislation introduced today . . . is another significant step toward helping working people better balance their work and home lives." Senator Judy Biggert (R-Ill.) is planning to sponsor a comp-time bill in the House. Representative Biggert also emphasized the need to "embrace practical solutions that build upon the FMLA to facilitate additional flexibility for workers with personal leave needs." Representative Biggert is championing this legislation to "provide a powerful new tool to help working woman balance the needs of their career and family.
State Whistleblower Law
On January 24, 2003 the New Hampshire Department of Labor ruled that New Hampshire's Whistleblower Law (RSA 275-E) only protects individuals who are employed by the employer at the time they report a violation of rule or law; individuals who make such a report after their employment has ended are not covered. (Appeal of Northeast Rehabilitation Hospital) In this case, the complainant had been employed by the hospital until February or March of 1996. She made her report in August of 1996 and was rehired by the hospital in October of that year. The complainant alleged that as a result of her complaint she was not promoted, was precluded from job openings and was actively discriminated against.
Military Service
In one of the first recent decisions regarding terminating employment of an employee who is also serving in the military, a federal district court in Wisconsin recently ruled that a U.S. Air Force reservist can sue her employer for violating the Uniform Service Employment and Reemployment Rights Act of 1994 for discharging her because of her military obligations. The individual, a U.S. Air Force reservist working as a sales consultant, was fired one month after September 11, 2001. The employer argued the company fired the employee for criticizing company policies when speaking with customers. But, the court found that a reasonable jury could conclude that the employee was terminated due to the employer's increasing frustration over the employee's repeated absences to attend to military obligations. (Gillie-Harp v. Cardinal Health, Inc., 171 LRRM 2956, W.D. Wis., No. 02-C-136-C, 1/9/03).
While this employer may ultimately be able to convince a jury that the termination resulted from the employee's misbehavior rather than her military status, employers are well advised to consider military status along with all other factors when disciplining or terminating an employee. Before disciplining or terminating an employee serving in the military, an employer should ask itself whether absences due to legally-protected military leave has influenced the decision.
Copyright 2003. This article originally appeared in BIA Update, April 2003.
* Anne Scheer is admitted in New Hampshire.
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