Employee Rights (part C)
by
Charles Lamson
Protections
In addition to rights against discrimination on various bases and against certain kinds of invasive or offensive testing, employees have been accorded a variety of protections. These include protections of their jobs with a family necessity or medical condition requires a leave, notification of plant closings, and protection from secondhand cigarette smoke.
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Family and Medical Leave
In order to allow employees the right to take leave when family circumstances or illnesses require it, the federal government enacted the Family and Medical Leave Act (FMLA). This law allows an employee to take an unpaid leave of up to 12 work weeks in a 12 month period on the following occasions:
The law applies to public and private employers who have 50 or more full or part-time employees for 20 weeks during the year. It gives leave rights to employees who have worked for the employer for at least 12 months and a total of 1250 hours.
While the FMLA gives workers the right to take leave, it is important to note that this leave is unpaid. Workers also may be required by their employers to use accrued paid vacation, personal, medical, or sick leave toward any part of the leave provided by the FMLA. If the leave is for the birth, adoption, or placement of a foster child, the leave must be taken within the first 12 months of the event. Unless the leave is not foreseeable, employees must give 30 days notice of a leave request.
A serious health condition for which leave may be requested is an illness, injury, impairment, or physical or mental condition that requires inpatient care or continuing medical treatment. Its purpose is to provide leave for the more exceptional and presumably time-consuming events. The care given to another includes psychological as well as physical care.
The benefit provided by the FMLA is that after taking the leave and returning to work, employees have to be given back their previous positions. If this is not possible, the employer must put them in an equivalent job in terms of pay, benefits, and the other terms and conditions of employment.
Plant Closing Notification
Under the provisions of the federal Worker Adjustment and Retraining Notification Act (WARN), a business that employs 100 or more employees must give 60 days written notice of a plant closing or mass layoffs. A mass layoff is defined by the act as a decrease in the workforce at a single site of employment that results in an "employment loss" during a 30-day period for:
An employment loss is a termination that is not a discharge for cause, a voluntary departure, or retirement.
The written notice must be given to workers expected to experience some loss of employment, or their union representative, and to specified government officials. Workers in this instance include managers and supervisors. WARN does not require the full 60 days notice if the plant closing or mass layoffs occurs as a result of an unforeseeable business event, a natural disaster, a labor dispute (a lockout or permanent replacement of strikers), the completion of a project by employees who knew the employment was temporary, or certain relocations when employees are offered transfers.
In case of a violation of WARN, an employee may sue the employer for back pay for each day of violation as well as benefits under the employers employee benefit plan. Courts have the discretion to allow the successful party in such lawsuits to recover their reasonable attorneys' fees.
Smoking
The disclosure of the damaging effects of breathing secondhand smoke has resulted in a desire by many nonsmoking employees to work in a smoke-free environment. The right of employees to be protected from secondhand cigarette smoke is protected in a variety of ways.
Some employers have taken the initiative by prohibiting or restricting smoking at their workplaces. In addition, a number of states and municipalities have enacted restrictive smoking legislation. This legislation varies greatly. No state law totally bans smoking at all job sites. Some laws merely require employers to formulate and publicize a written policy about smoking in the workplace. Others require employers to designate smoking and non-smoking areas. Nearly all the laws have exceptions to the smoking ban that allows smoking in private offices. In spite of these exceptions, a very large percentage of employees have some kind of smoking restrictions in effect.
Other Sources of Rights
There are many other rights granted to employees, particularly through federal laws, which apply to large numbers of workers. These laws include the Rehabilitation Act and the Pregnancy Discrimination Act. The rights granted by these two laws are similar to those granted by statutes mentioned in the last few posts.
INTERNET RESOURCES FOR BUSINESS LAW
*SOURCE: LAW FOR BUSINESS, 15TH ED., 2005, JANET E. ASHCROFT, J.D., 352-354, 358*
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