Articles Posted in Vacation

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In addition to minimum wage, proper overtime compensation, and meal and rest breaks, eligible employees working for certain companies are also entitled to unpaid leave for specific family and medical reasons without fear of losing their job. They are also entitled to continue to be covered under group health insurance during that leave, under the same conditions as if they had not taken leave. These rights are guaranteed under the Family and Medical Leave Act of 1993. This act promises eligible employees twelve workweeks of leave in a twelve-month period for:
• the birth of a child and to care for the baby in the first year of life;
• the arrival of an adopted or foster child;
• to care for a spouse, child, or parent with a serious health condition;
• a serious health condition which prevents the employee from performing her job
• Any qualifying exigency arising out of the fact that a spouse, child, or parent is a covered military member on “covered active duty”.

In addition, eligible employees are also entitled to twenty-six workweeks of leave during a twelve-month period to care for a covered service member with a serious injury or illness if the employee is the service member’s spouse, parent, child, or next of kin.
Many employees rely on these rights to take needed time off to deal with medical issues, whether their own or a family member’s, without fear of losing their jobs. However, many companies don’t want to hold the employee’s job for them and they often find ways of terminating the employee, although this is illegal. One such case recently arose when a dialysis nurse at Massachusetts General Hospital took an FMLA leave for a disability and later extended her FMLA leave for a non-occupational injury.

The nurse had worked as an acute hemodialysis nurse at the hospital for about five years before she took her leave. When she attempted to return to work by a certain date, which she and the hospital had previously agreed on, she was allegedly denied reinstatement. The blow came in the form of a phone call with her employer. This was all in spite of the fact that the plaintiff allegedly had written consent from her physician to return to work. Instead, the hospital allegedly gave her job to another nurse, despite the fact that they admitted that the nurse was “unqualified to perform dialysis” at the time that the plaintiff was seeking reinstatement in her job.

The nurse filed a lawsuit in 2010, alleging age and handicap discrimination and retaliation under the Family and Medical Leave Act. The case went to trial and the trial lasted for four days. The jury ruled in favor of the plaintiff and awarded her $1.24 million for front and back pay. The verdict is also subject to the statutory prejudgment and post judgment interest. In addition, the plaintiff is able to recover reasonable attorneys’ fees under the FMLA but can receive no monetary compensation for the emotional distress she must have suffered as a result of this ordeal.

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In a previous post, we discussed the Family and Medical Leave Act (FMLA). The Act was passed in 1993 to allow workers who needed time off because of illness, or to help an ill family member, take it without fear of losing their jobs. Employees who work at companies with 50 or more employees can take up to 12 weeks of unpaid leave as long as they have worked for the company for at least 12 months. That should be fairly simple and straightforward, yet too often it isn’t. Often questions arise over whether an illness qualifies for FMLA leave, whether you must take the leave all at once or whether you can take it a few days at a time over several months. Another concern is whether you are following the proper procedures. If you want to find out more about FMLA leave, contact an experienced Illinois vacation attorney today.

Misunderstandings about proper procedures was the issue in Harrell v. Jacobs Field Services North America, Inc. Plaintiff Rodney Harrell sued his employer in federal district court because it allegedly would not allow him to return to work after taking leave under the FMLA. Plaintiff worked as a laborer in one of the defendant’s fabrication shops. He took three days off of work when he began to have problems with his allergies, then failed to show up to work or report his absence the following week. However, a week after he last called in sick to work, plaintiff called the superintendent of the shop and told him that he was requesting FMLA medical leave and needed the proper paperwork. Plaintiff received two forms, one that said his medical leave would begin August 18, 2008, and another was to provide certification of a serious medical condition. Plaintiff’s doctor filled out the second form, stating that plaintiff would be able to return to work on August 25th without any restrictions. On August 25th, plaintiff submitted Fitness for Duty forms to human resources.

Problems arose when plaintiff failed to return to work on September 2, 2008, after his vacation. Plaintiff claimed he was told he could not return to work until his FMLA leave had been approved. He alleged that he stopped by the fabrication shop the week of August 25th and asked his superintendent whether he had been cleared to return, and was told that the superintendent was still waiting to hear from human resources. His superintendent denied having spoken to plaintiff before October 6th and claimed that several meetings were held to discuss plaintiff’s absence. Plaintiff finally picked up his belongings on December 1, 2008, and defendant removed him from the payroll on February 13, 2009.

Plaintiff sought a ruling in his favor and defendant sought to have the case dismissed. Judge Michael McCuskey found that plaintiff’s illness was chronic, qualifying him for FMLA leave. However, there was a genuine dispute over whether defendant misrepresented to plaintiff when he could return to work, thus denying him his right to return under the FMLA. Until this dispute was resolved, the court could not rule in the plaintiff’s favor or dismiss the case.

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In an uncertain economy, more people are finding work as temporary employees. While temporary employment can lead to more stable work, it also puts the employee in an awkward situation. Though the employee might do the same work as full-time employees at a company, he or she does not receive the same pay, vacation time, or bonuses. Instead, the employee works for the temporary agency, which is expected to provide wages and benefits. How and when the agency provides them is often a point of contention that requires a Chicago wage and hour attorney to intervene.

In Rosales v. The Placers, LTD, the plaintiffs brought a class-action lawsuit in federal district court against the defendant for violating the Illinois Wage Payment and Collection Act (IWPCA). Plaintiffs Fernando Rosales, Servando Ayvar, and Juan Herrera worked for The Placers, a temporary staffing agency, in 2006. They alleged that The Placers vacation policy forced them to give up earned vacation time in violation of Illinois law.

The policy stated that temporary employees could earn 40 hours of paid vacation if they met certain eligibility requirements. These requirements were that the employees accrue 1,500 hours of work within a 52-week calendar period, or “within the anniversary year of employment.” The plaintiffs claimed that the policy punished any employee who did not accrue 1,500 hours (roughly eight to nine months) within a 52-week period. The defendant sought to have the case dismissed.

The Illinois Wage Payment and Collection Act states: “Every employer shall pay the final compensation of separated employees in full, at the time of separation if possible, but in no case later than the next regularly scheduled payday for such employee.” Meanwhile, IDOL regulations state that “[a]n employment contract or an employer’s policy may require an employee to take vacation by a certain date or lose the vacation, provided that the employee is given a reasonable opportunity to take the vacation.” IDOL also mentions that vacation policies are permitted where “vacation is earned and accrues at an accelerating rate during the year.” An accrued-vacation policy is acceptable when “changes in accrual rates are reasonable” and the policy is applied to all employees.

The defendant argued that because the policy requires employees to earn 1,500 hours to qualify for vacation time, they cannot forfeit something they haven’t earned. The plaintiffs responded that IDOL regulation states that when vacation is based on length of service, the employee earns it as he or she provides the service. If employees are continuously earning vacation time until they meet 1,500 hours, then any employee who works less than 1,500 hours, and is then dismissed, would be forced to give up accrued time.

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