Practical Support for the Changing World at Work 
Linda F. Willing
P.O. Box 148
Grand Lake, CO
80447
970-627-3732
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Consider This... September/October 2001 Issue Number 27

Is a monthly electronic newsletter which links current events and issues to the daily challenges faced by fire and emergency services managers. Current topics in the area of sexual harassment, diversity management and conflict resolution will be discussed.

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Upcoming Events

Women in Firefighting: Walking the Legal Tightrope: October 11-12, 2001. Sponsored by the Cleveland State University law school, this conference will cover topics including recruitment, training, testing, and promotion. Contact fff.conference@law.csuohio.edu or call 216-687-3947 for more information.

Women Chief Officers Symposium: November 9-11,2001, Austin, TX. Call 303-841-5768 for more information.

IAFF Human Relations Conference: January 13-15, 2002, New Orleans.

Leadership Training Seminar March 8-10, 2002, San Diego Bahia Resort. Sponsored by Women in the Fire Service. For more information call 608-233-4879 or email info@wfsi.org.

 

In the News

The Family and Medical Leave Act

The Family and Medical Leave Act (FMLA), became effective in August 1993 for most employers. This law guarantees unpaid, job-protected leave of up to 12 weeks in a 12 month period for the purpose of caring for designated family members, or oneself, under certain medical conditions. Specifically, the FMLA applies to the following circumstances:

  • the birth and care of a newborn child of the employee
  • the adoption or foster care placement of a child in the employee's home
  • the care of an immediate family member (spouse, child, or parent) with a serious health condition
  • medical leave for the employee who is unable to work due to a serious health condition

The FMLA applies to public agencies, including federal, state, and local employers, as well as local education agencies. In addition, private employers with more than 50 employees must also comply. Covered employees must have worked for the organization for at least 12 months, and must be on full-time status. Spouses employed by the same organization are jointly entitled to a combined total of 12 work weeks per year of leave for the care of family members.

During a qualified FMLA leave, employers must maintain the worker's group health insurance coverage. If an employee normally pays a portion of the insurance premium, s/he must be given the opportunity to do that while on leave. In some cases, employers may recover health insurance costs for employees who fail to return to work after FMLA leave.

Upon return from FMLA leave, an employee must be restored to the job that was left, or to an equivalent job in terms of pay, benefits and terms of employment. FMLA leave cannot be counted against an employee for the purpose of calculating absenteeism.

There was some concern in the days before the passage of the FMLA that the law would result in frequent long term absences of key employees, a circumstance that would cripple businesses. This has not generally happened, largely because the FMLA guarantees only unpaid leave. In fact, the law has had less overall impact on business than was predicted by many. Larger organizations often already had benefits in place similar to the FMLA. Smaller organizations felt a greater impact, but employees were still constrained by the fact that FMLA leave is unpaid.

The FMLA is gender-neutral. It applies equally to men and women who need time to care for children or other family members. The FMLA is not intended to supersede employer benefits for pregnancy, although a serious medical condition related to pregnancy would be covered by the law. Similarly to the Pregnancy Discrimination Act, the FMLA is intended to guarantee a base level benefit that must be provided. Employers who wish do to more for their workers with family needs may legally do so.

On the surface, the FMLA is a simple law that has provided the benefit of job security to those who otherwise might lose their employment in the case of family emergency. It also provides the option for parents to take time away from work to bond with and care for new children. However, the law has required some clarification in the years since its implementation. More on that next month.

Sources: Fact Sheet No. 028, Department of Labor Mastering Diversity: Managing for Success Under ADA and Other Anti-Discrimination Laws by James Walsh.

News Brief

Prudential Insurance Co. has settled an EEOC complaint brought by four Haitian workers for $300,000. The workers alleged that they were forbidden from speaking Creole at work, when those speaking Spanish, Russian, Greek, Italian, French and Lebanese were allowed to converse in their native languages. Prudential admitted no wrongdoing in making the settlement.

Source: Reuters News Service, September 4, 2001.

Sexual Harassment Update

Damages Cap Revised

The 1991 Civil Rights Act created the possibility for victims of workplace harassment to sue for compensatory damages under civil rights law. The cap for damages of this type under the 1991 law is $300,000, or less, depending on the size of the organization in question. Prior to 1991, individuals who prevailed on harassment claims could only receive monetary awards in the form of being "made whole" legallyö reinstatement in their jobs, back pay, attorney's fees, lost benefits.

A recent Supreme Court decision has expanded the potential for monetary damages in harassment and discrimination cases. This case deals with the issue of "front pay," money that is awarded for lost compensation during the period between judgment and reinstatement, or in lieu of reinstatement.

For example, if an employee successfully sues to get her job back after being discriminated against in the workplace, the defendant organization would be liable for back pay during the time of illegal discharge, legal fees, and lost benefits. The organization would also be obligated to reinstate the employee in the same position that had been lost due to the illegal job action. If a position is not immediately available, then the plaintiff would be eligible for "front pay"ö money that would have been earned if the victim of the harassment had been allowed to work as dictated by the court. If the plaintiff does not return to work because of egregious workplace conditions or personal harm that has taken place, then front pay may also be appropriate in lieu of reinstatement.

The case before the court was not whether front pay is appropriateö this had already been decided and affirmed. The decision by the court dealt with what kind of damages front pay applies to.

Back pay, lost benefits, legal fees - these are considered actual damages and have always been reimbursable without limit following successful discrimination or harassment suits. Only since 1991 may victims claim compensatory or punitive damages. In the case of Pollard v. DuPont, the lower court decided that front pay awards were part of compensatory damages and not actual damages, and thus were subject to the $300,000 cap. The U.S. Supreme Court disagreed, defining front pay as just another form of back pay, and thus not subject to the damages cap.

What does all this mean for employers? Simply stated, a successful harassment or discrimination suit against your organization could cost you more, much more, in financial loss. This is especially true if the case drags on for many years, and if the ultimately successful plaintiff does not return to work.

The best discrimination lawsuit is the one that never happens. Actively prevent and remedy behavior in the workplace that is discriminatory or harassing. A sexual harassment lawsuit is costly in many ways to your organizationö damaged public relations, loss of trust among workers, untimely attrition. But the Supreme Court has decided it could cost you a lot more money too.

Source: Pollard v. DuPont, 00-763, 2001.

© Linda F. Willing, 2001

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