RYAN SCOTT NALLEY IS A CHICAGO LAWYER DEDICATED TO ADVOCATING FOR THE RIGHTS OF EMPLOYEES TO BE FREE FROM UNPAID WAGES, UNPAID OVERTIME WAGES, AS REQUIRED BY THE FAIR LABOR STANDARDS ACT of 1938 AND/OR THE ILLINOIS MINIMUM WAGE LAW AND WAGE PAYMENT AND COLLECTION ACT OR DUE TO A BREACH OF WRITTEN OR ORAL CONTRACT; AS WELL AS RACIAL DISCRIMINATION; DISABILITY DISCRIMINATION, RELIGIOUS DISCRIMINATION, RETALIATION, INTERFERENCE AND/OR RETALIATION PURSUANT FAMILY MEDICAL LEAVE ACT of 1993, THE PROTECTION OF WHISTLE BLOWERS; AGE DISCRIMINATION, GENDER AND SEXUALITY DISCRIMINATION; OR A HOSTILE WORK ENVIRMENT UNDER ANY OF THE SAME. IF YOU HAVE THE ABOVE OR SIMILAR PROBLEMS, CALL ATTORNEY, RYAN SCOTT NALLEY, [773] 621-6809

Family Medical Leave

  YOUR RIGHTS UNDER THE FAMILY MEDICAL LEAVE ACT OF 1993

 

     The Law Office of Ryan Scott Nalley is particularly adept in representing employees victimized by violations of the Family Medical Leave Act of 1938 ("FMLA").

     The FMLA might be the most detested law by employers. It grants an employee the right to take up to 12 weeks of unpaid leave due to a serious medical condition of the employee or that of an immediate family member of the employee.  An employer is forbidden from terminating an employee because of his her medical leave, and therefore, must hire the employee back at his or her original position, or some other comparable position with like duties and similar pay.  This often causes inconvenience to the employer, and consequently, the law is frequently violated, and cases usually are not difficult to win or settle.  This is in large part due to the laxity of the legal definition of a "serious medical condition" and the general leave requirements under the statute.  29 U.S.C § 2601 et. seq.

     It is not usually difficult for an employee to qualify for FMLA leave if he or she has a genuine illness.

     However, the employee must have worked at least one year for the employer, and worked a total 1,250 hours within the preceding year of the his or her need for leave, have "serious medical condition" or have an immediate family member with such condition.

     Further, the employer must employ at least 50 employees within the workplace or at least within a 75 mile radius of the workplace.  However, the FMLA is not only an inconvenience to the employer, it is often complicated and confusing as to what rights and responsibilities belong to the employer and which belong to the employee.

     However, in order for an employee to state a cause of action for interference under the FMLA, no intent is required to be shown on the part the employer. This makes it relatively easy for the employee to prevail in an cause of action against the employer.

A serious medical condition is:
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.

     This is a relatively broad definition. Thus, it is not difficult for an employee to qualify for protection under the Act.

      If the leave is foreseeable, an employee must give the employer 30 notice of the requested leave, and require that the medical condition be certified by a doctor. However, it is often the case that an employee has unforeseeable condition, such as an undiagnosed mental condition which manifests itself in the workplace.  In such a case an employee must give notice within a reasonable time period, usually within 24 hours if it possible for the employee to do so.

     Moreover, there are two theories under which a cause of action can be brought under the Act: interference and discrimination--discrimination is also known as "retaliation." These are defined as follows: INTERFERENCE WITH RIGHTS.--

(1) EXERCISE OF RIGHTS.--It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this title.

(2) DISCRIMINATION.--It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this title.

(b) INTERFERENCE WITH PROCEEDINGS OR INQUIRIES.--It shall be unlawful for any person to discharge or in any other manner discriminate against any individual because such individual--

  • (1) has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this title;
  • (2) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this title; or
  • (3) testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this title.

     It is important to understand that statue is not interpreted to mean literally that an employee must be exercising his or her rights under the statute itself. A violation occurs any time an employee is entitled to rights the statute grants, and the employer forbids the exercise of said right, whether for reasons of financial necessity or ignorance of the law.  The intent of the employer is not relevant for purposes as stating a case under the interference theory of the Act.

     However, if an employer can establish that he would have terminated an employee for reasons unrelated to the employees leave (which will also his medical condition itself as well as the need for leave), the employer will not be held liable for violating the Act.

     Notice, or the lack thereof, is often an issue in cases pursuant FMLA violations. While an employee is required to notify the employer of the need to take leave, this is not a daunting task for the employee. The employee does not need to invoke his or her rights under the statute, nor even mention the statute. He or she need only inform the employer to the extent that the employer should reasonably know that such leave is qualified as FMLA leave. At that point it become the responsibility of the employer to inform the employee that he or she may be entitled to leave pursuant to the FMLA.

     However, the employer is entitled to a doctor's certificate confirming the need for leave within fifteen days after the employee has taken leave, but the employer himself is required to inform the employee of his rights under the FMLA and provide the proper paper work for the doctor to fill out, and he must do so within five days of learning of the employee's need for leave.

     Lastly, there is generally a two year statute of limitations on bringing a cause of action under the FMLA. Though the limitation can be extended to three years, it is not often done, and thus, meeting filing suit within two years of the violation is usually imperative.

     It is also worth noting that violations of the FMLA often overlap or otherwise go hand in hand with violations of the Americans With Disabilities Act.

If you believe your rights under the Family Medical Act have been violated, call Ryan Scott Nalley today.

[773] 621-6809

attorney@ryannalleylaw.com

 

 

YOU HAVE THE RIGHT TO BE FREE DISCRIMINATION IN THE WORKPLACE BASED ON RACE, DISABILITY, GENDER, NATIONAL ORIGIN, THE NEED FOR LEAVE DUE TO SERIOUS ILLNESS OF A FAMILY MEMBERS ILLNESS; TO BE PAID ON TIME AND AT A RATE OF ONE AND A HALF OF YOUR REGULAR RATE FOR ALL HOURS WORKED OVER 40 IN ANY WEEK; YOU HAVE THE RIGHT TO A REASONABLE ACCOMMODATION THAT ALLOWS AN EQUAL OPPORTUNITY TO PERFORM YOUR A JOB DESPITE YOUR DISABILITY; THE RIGHT EQUAL PAY, GENDER EQUALITY, TO BE PREGNANT; YOU HAVE THE RIGHT TO COMPLAIN ABOUT ANY OF THESE RIGHTS WITHOUT FEAR OF RETALIATION. THOUGH EMPLOYED AT WILL, YOU HAVE EMPLOYMENT RIGHTS. THE LAW OFFICE OF RYAN SCOTT NALLEY [773] 621-6809