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Date August 6, 2012!!
In The News.....
Recent events have shown how important understanding or not understanding your rights as an employee are. The recent Chic-fil-A controversy is a classic example.
According to a recent article by http://www.dailymail.co.uk (MailOnline)there was an incident at a Chic-fil-A restaurant. This incident points to areas of employee rights being affect.
In the workplace bullying case, an individual named Adam Smith verbally abused a Chic-fil-A drive thru window employee. In an amzing display of stupidity he videotaped and uploaded his verbal assault to You Tube.
He goes on to explain on his video the intent to bully the employee!
The following is a quote from the article;
"When he gets to the window, he starts to all-out bully the young female employee behind the counter, who remains calm and polite throughout the whole exchange.
He said: 'I don’t know how you live with yourself and work
here. I don’t understand it. This is a horrible corporation with horrible values.' The girl tells him repeatedly to have a nice day and that it is a pleasure to serve him as well as saying: 'I'm staying neutral on this subject.
My personal beliefs don't belong in the workplace.' As he drives off he tells the worker: 'I'm a nice guy by the way, and I'm totally heterosexual. Just can't stand the hate.
It's gotta stop guys, stand up.'"
Unfortunately, his employer was not amused. According to MarketWire Mr. Smith was fired by his employer Vante, Inc. Adam smith was the CFO of the Arizona-based medical device manufacturer.
We see employers are starting to take the problem of workplace bullying seriously! Vante Inc. also recognized potentially negative publicly by issuing this statement;
"The actions of Mr Smith do not reflect our corporate values in any manner. Vante is an equal opportunity company with a diverse workforce, which holds diverse opinions."
The lesson for employees: Bullies are always co-workers or managers. Bullies in the workplace can be vendors, customers, visitors even family members of co-workers.
Also use the example the Chi-fil-A drive thru employee used....REMAIN CALM! I know that's easier said than done ;0)
I will continue to provide you with the latest info affecting your Basic Employee Rights!
So let's get to it!
What Every Employee Needs To Know!
The Maze called the "Bermuda Triangle" of the workplace is the intersection between FMLA, ADA and Workers' Compensation. The overlap and potential conflict of these three laws frequently causes confusion and mistakes for employers.
How much less then do job seekers and employees understand how ADA, FMLA and Workers' Compensation affect them? Well yours truly is here to hopefully makes these muddy waters a little clearer. First, what does each federal law mean?
The following are condensed definitions of the three laws.
The FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period to care for a spouse, parent child or themselves. The 1993 law also allows employees to take time off for the adoption or the birth of a child.
Title I of the Americans with Disabilities Act ensures that qualified individuals with disabilities are protected from discrimination on the basis of physical or mental disability. As long as the individual is qualified for an employment opportunity, he/she can't be denied an employment opportunity simply because she/he has a disability, and must be given equal consideration for employment that individuals without disabilities are given.
Workers' compensation is a required form of business insurance that provides income replacement and medical coverage to employees who become sick or injured while on the job. Additionally, it protects employers from being sued by employees because of the workplace conditions responsible for the illness or injury.
The following scenario provides an understanding of the potential complexity and importance of understanding the
merging of these three laws.
Yvonne is a production clerk at SweatShop Inc. and suffers a severe knee injury at work. She has to have major knee surgery requiring a long period of therapy. She has certification from her surgeon verifying a nine week recovery period. Unfortunately, there were complications with her surgery which
left her with a permanent severe limp requiring an assisting device which is a cane.
Yvonne's doctor provides certification that confirms she is substantially limited in the life activity of walking and bending and running. Yvonne's job involved moving quickly along the production line with frequent bending and lifting of finished product. These make up the majority of the essential functions of Yvonne's job.
The question for SweatShop Inc. and especially Yvonne is what happens to her job and what is her employer legally obligated to do?
From this example here's the breakdown under the "Bermuda Triangle" of FMLA, ADA and Workers'
Yvonne's disability is covered if Sweatshop Inc. meets...
(1) The minimum company size: 15 or more employees for 20 calendar weeks in current or recent calendar year. If yes...
(2) Sweatshop Inc. obligated to accommodate Yvonne unless it means an "undue hardship" on the company.
If no "undue hardship"---> Yvonne's position can be modified so she perform the essential functions.
If "undue hardship"---> The employer may offer different job not requiring walking and bending and running at different pay rate. Yvonne must be qualified for the new job.
Yvonne's injury qualifies as a "serious medical condition" under FMLA. Does Sweatshop Inc. qualify under FMLA?
(1) The minimum company size: 50 or more employees within 75 miles radius for 20 or more weeks in current or calendar year. Includes state,local and most federal employees.If yes...
(2)Yvonne's eligibility: She must have worked a total of 12 months (not necessarily consecutive) and a total of at least 1,250 hours most recently in 12 months counting back from the leave request date. If yes....
leads to --->
Yvonne being entitled to nine weeks of protected leave with continuing medical benefits as certified by her doctor.
Yvonne will not be able to resume her duties at the end of those nine weeks. Therefore, Sweatshop Inc. must provide her an additional three weeks with medical benefits.
However, employers are not required to pay leave under FMLA so these additional three weeks can be unpaid. That said Workers' Compensation may provide paid leave. FMLA is used up at the end of twelve weeks and Yvonne's employer has to reinstate her to her former job at same compensation if she is able to perform it. Obviously, in this case she will not be able to. However, Sweatshop Inc. probably can't fire her because of the ADA considerations.
Yvonne got hurt on the job and it was work related. Depending on the specific state where Sweatshop Inc. is located the exact Workers' Compensation Yvonne is entitled to may vary. However, Workers' Compensation typically pays medical expenses associated with her job injury and salary while off work. Yvonne may be able to perform light duty work when she returns. If Sweatshop Inc. has a light duty job for her it may be obligated to put her in that position until she has completed what's called (MMI) Maximum Medical Improvement.
Yvonne may forfeit her Workers' Compensation wage replacement if she refuses the light duty job. The good news is Sweatshop Inc. may not be able to fire her if she has FMLA leave left. Yvonne may be eligible for benefits for permanent partial disability. This is true even if she is unable to resume her former position.
This example of how these three laws interact is somewhat simplistic but accurate. Sweatshop Inc. might have fired
Yvonne after her FMLA benefits were exhausted. But doing this would most likely have violated her ADA rights. Also, at the end of her FMLA twelve weeks if Yvonne hadn't completed (MMI) Maximum Medical Improvement and been terminated this could've violated her state Workers' Compensation protection.
Even more important, what if Yvonne had been terminated without knowing her rights in these three laws were being violated? We will learn more about understanding the interplay between these three laws ADA, FMLA and Workers' Compensation and being prepared as employees to use them to our advantage ;0)
Oh! Before you go I need your help. I want to make I know exactly
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Written by Yancey Thomas Jr.
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