Government, Courts, and the World of Work

The first President Bush vetoed the Family Medical Leave Act twice.  Bill Clinton signed it.  It requires employers with 50 or more employees to provide up to 12-weeks off for disability leave or for employees to care for ill family members.  The law is complex and creates a fair amount of litigation.

Now legislation has been introduced in both the House and Senate to extend FMLA coverage to employers with as few as 25 employees and include at least 24 hours of “school involvement leave.”

Could this be de ja vu all over again? The second President Bush is sure to veto the bill when it reaches his desk. What about the next guy (or gal)? Odds favor an expansion in 2009.

For those of you who have been reading this blog, you understand that the so-called paid family leave being advanced in NJ is not a leave law, per se.  Rather, the bill amends the temporary disability law so that employees can receive benefits for up to 6 weeks to care for ill family members.

Proponent’s of the bill mention that employees can still be fired.  However, in Delgado v. LA Weight Center’s, Inc. A federal court held that an employee can sue her employer for firing her in retaliation for filing a state disability claim.   This decision creates an exception to the at-will discharge rule.

Opponent’s of paid family leave are citing the Delgado case to argue that firing employees who are absent caring for ill family members will lead to frivolus allegations of retaliation, thereby creating a de facto right to reinstatement.

The drafters should seek to limit frivolous litigation and be certain that the bill does nothing to undermine at will employment.