The Division on Civil Rights recently reached a settlement with a North Bergen manufacturer and importer, that learned this lesson the hard way. The Company advised an employee, who, when she had a baby, opted to take time under the federal Family and Medical Leave Act (“FMLA”), that she could not take an additional 12 weeks under New Jersey Family Leave Act (“NJFLA”) to care and bond with her newborn. In March 2018, the Company asserted, to the employee, that the time taken under FMLA ran concurrently with the time allowed under the NJFLA, adding that if she did not return to work in June 2018 they would accept her decision as her resignation.
The employee returned to work. The employee alleged that the Company then began a campaign of harassing and retaliatory behavior:
- The employee was deliberately excluded from projects and meetings;
- The Company redirected a workplace security camera so that it pointed directly at the employee’s workstation;
- The Company’s chief operating officer made a demeaning and inappropriate joke; he allegedly said, “So how old is your daughter? Six years old by now?”;
- The Company also excluded the employee from meetings and took away some job responsibilities;
- The Company retaliated against the employee by telling her she had to take a two-week business trip to India and China. The employee asked to delay the trip until she was no longer exclusively breastfeeding her newborn daughter and she supported that request with a note from her physician. The Company denied the request.
At the beginning of October 2018, the Company terminated the employee. Why? The Company said the employee was let go because she was either unable or unwilling to perform an essential job function. The employee filed a complaint regarding NJFLA interference as well as allegations that the Company illegally denied her a reasonable accommodation relating to breastfeeding and in retaliation, terminated her employment. The amended complaint also asserted a violation of the New Jersey Law Against Discrimination.
Unfortunately, the Company was wrong in its position. The time permitted under the FMLA, to recover from childbirth, is not a leave that is covered under the NJFLA. Therefore, the use of FMLA time did not exhaust any of the 12 weeks available under NJFLA. Specifically, NJFLA does not provide protected time for an individual to take care of their own serious medical conditions but only provides time for an employee to take care of their “family members,” a fairly broad definition, with serious medical conditions among other issues. Most significantly, the NJFLA permits parent bonding time of up to 12 weeks which, in many circumstances, can be in addition to the FMLA time of 12 weeks.
The Company was found liable for damages, and the settlement requires the Company to review and revise its policies and to provide appropriate anti-discrimination training.
TAKEAWAY: Employers should review their family and medical leave policies to ensure they comply with all relevant laws, including FMLA and NJFLA. If you have questions regarding the family leave laws or any other employment laws, contact Tracy Armstrong or another member of the Wilentz Employment Law Team.
The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services. Although we attempt to ensure that the postings are complete, accurate, and current as of the time of publication, we assume no responsibility for their completeness, accuracy, or timeliness. The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel.
This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk. We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability. Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein. We will remove a link to any site from this blog upon request of the linked entity.
We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.
If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com. One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.