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New Jersey employers and employees sometimes confuse leave rights

Employees in New Jersey have the right to take a leave without losing their job under both the New Jersey Family Leave Act and federal Family and Medical Leave Act. Both laws offer 12 weeks, and if an employee is fired for taking a qualified leave, that would be wrongful termination. New Jersey's law pertains solely for time off to care for a family member or newly born or adopted child, while the federal law also applies taking time off for a medical condition in addition to childbirth, adoption and caring for a family member.

Because there are both federal and state laws associated with leave rights--and military members are covered by additional laws--sometimes, employers and employees misunderstand their rights. Recently, a federal appeals court ruled that an employer had failed to communicate its policies to an employee regarding FMLA benefits and thus was wrong to fire a worker for violating those policies.

The case involved an Ohio workplace, in which a 36-year-old employee requested an FMLA leave from April 27 to June 27 in 2005 due to a shoulder injury.

The leave was approved, but things became complicated when the employee's doctor said he could go back to work June 13, which was two weeks before the scheduled date of return. The employee did not return to work and on June 14, the employer called him to ask why was not at work. The worker said his injury was still causing him trouble, and then he went back to work on June 17 and gave the employer a note from the doctor, requesting the leave be changed yet again, to June 18 this time.

However, the employer had already accepted June 13 as the new return-to-work day, and so it faulted the employee for 4 days of unexcused absence. The company fired him.

The employee fought back and took his case all the way to a federal appeals court, which ruled in favor of the employee. The court said that the employer had failed to communicate to its employees of how FMLA leave was calculated. There are in fact two ways to calculate FMLA, under the law. Additionally, the company did not provide the employee written or verbal notices of any changes of the return-to-work date, short of a phone call the day after the employer expected the employee to return.

The company was ordered to pay the employee liquidated damages, double damages as provided for in the FMLA. This was more than $300,000.

New Jersey employers should be very communicative about how they will enforce the FMLA and New Jersey leave laws. It is important not only to have policies, but to have them clearly written and communicated when someone requests a leave.

Source: Business Insurance, "Employer did not communicate FMLA police, can't fire worker: Appeals Court," Judy Greenwald, Jan. 24, 2012

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