Mar 22

LIMIT ON ATTORNEY FEES BARRIER TO REPRESENTATION FOR PRISONERS

Categories:

Civil Rights

by admin

If New York attorney Harrison Williams was representing a typical client, his recent win should have netted him thousands of dollars in attorney’s fees. Some even estimate that he should have gotten around $75,000 for the successful civil rights case. However, Williams will only be seeing a minuscule fraction of that amount. An appeals court has ruled that he will be paid $1.50.

The reason? Williams was handling a prisoner’s case. Under the Prison Litigation Reform Act, passed in 1997, attorney fees in these types of lawsuits are limited to 150% of a jury’s award.

So even though Williams successfully litigated the case, he is only entitled to $1.50 in attorney’s fees given that the jury awarded his client $1.

Williams’ client, a man serving a life sentence in prison for robbery and possession of stolen property, had alleged the prison violated his rights by conducting a search of his “sacred” dreadlocks. Williams’ client believed that when the guards touched his hair, they were violating his Rastafarian beliefs, reports The Wall Street Journal.

Williams is concerned that the fee structure might discourage attorneys from taking on civil rights cases since solo practitioners simply might not have enough resources to take on cases if they cannot recoup their expenses. Civil rights cases may be important to society as a whole, but not all lawyers can afford to lose money.

Harrison Williams’ case illustrates the need for reform. Admittedly the Prison Litigation Reform Act (PLRA) limits the number of frivolous lawsuits filed by incarcerated individuals, as The Wall Street Journal points out, it can certainly also act to limit the number of meritorious lawsuits pursued by attorneys. The assumption behind the limit on attorneys’ fees is that most prisoner cases are frivolous. The problem is that any prisoners that do have cases with with merit will find it very difficult to find a lawyer to represent them, since it is unlikely the lawyer will be able to recover a reasonable fee for his work, even if the lawyer prevails. As a society should we be discouraging representation of a class of people that need representation, simply because a lot of prisoner cases are dubious?

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Mar 22

MSPB: Difference between an “Adverse Action” and a “Disciplinary Action”

Categories:

MSPB Litigation

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Many federal workers have MSPB rights. This information applies to federal employees with MSPB rights and who have been subjected to some sort of discipline.

A “Disciplinary Action” is a suspension of 14 days or less, written letter of reprimand, or oral counseling. Aside from truly egregious misconduct, an Agency will usually propose a disciplinary action before taking more serious steps. Disciplinary actions lay the groundwork for Agencies to successfully take an adverse action. In most Agencies, bargaining unit employees can challenge disciplinary actions through their negotiated grievance process or through the Agency’s grievance process. Supervisors and non-bargaining unit employees may challenge disciplinary actions through the Agency’s grievance process (assuming the Agency has one). The MSPB does not hear appeals for disciplinary actions as defined above.

Adverse actions are suspensions of 15 days or more, downgrades, demotions, and removals. (Constructive actions – constructive suspension or removal, involuntary resignation or retirement may be adverse actions, but more on that another day). All adverse actions are appealable to the MSPB – so long as the employee has MSPB appeal rights.

If you are not sure if you have MSPB Appeal Rights, or if you would like to speak to an MSPB attorney about a proposed disciplinary or adverse action, contact Denver MSPB Attorney Gregory A. Hall.

Law Office of Gregory A. Hall
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Ph. 303-320-0584
Email: gregory@federallaw.com
Web: www.adenverlaywer.com

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Mar 21

OPM Disability Retirement Attorney

Categories:

OPM Disability

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APPLYING FOR OPM DISABILITY RETIREMENT

A federal employee seeking medical retirement under the Federal Employees Retirement System (“FERS”) or Civil Service Retirement System (“CSRS”) has the burden of establishing the essential elements of his or her claim. Before the Office of Personnel Management will approve an application for medical retirement, five criteria must be met:

1. The individual must have completed sufficient creditable service under FERS or CSRS.

2. The individual must, while employed in a position subject to FERS or CSRS, have become disabled because of a medical condition, resulting in a service deficiency in performance, conduct, or attendance, or if there is no actual service deficiency, the disabling medical condition must be incompatible with either useful and efficient service or retention in the position. Useful and efficient service means (i) acceptable performance of the critical or essential elements of the position; and (ii) satisfactory conduct and attendance.

3. The disabling medical condition must be expected to continue for at least 1 year from the date the application for disability retirement is filed.

4. The employing agency must be unable to accommodate the disabling medical condition in the position held or in an existing vacant position.

5. An application for disability retirement must be filed with the Office of Personnel Management (OPM) before the employee separates from service, or within 1 year thereafter.

FERS Eligibility Requirements

  • You must have completed at least 18 months of Federal civilian service which is creditable under the Federal Employees Retirement System (FERS).
  • You must, while employed in a position subject to the retirement system, have become disabled, because of disease or injury, for useful and efficient service in your current position.
  • The disability must be expected to last at least one year.
  • Your agency must certify that it is unable to accommodate your disabling medical condition in your present position and that it has considered you for any vacant position in the same agency at the same grade or pay level, within the same commuting area, for which you are qualified for reassignment.
  • You, or your guardian or other interested person, must apply before your separation from service or within one year thereafter. The application must be received by either OPM or your former employing agency within one year of the date of your separation. This time limit can be waived only if you were mentally incompetent on the date of separation or within one year of this date.
  • You must apply for social security disability benefits. Application for disability retirement under FERS requires an application for social security benefits. If the application for social security disability benefits is withdrawn for any reason, OPM will dismiss the FERS disability retirement application upon notification by the Social Security Administration.

CSRS Eligibility Requirements for CSRS Disability

  • You must have completed at least five years of creditable Federal civilian service.
  • You must, while employed in a position subject to CSRS, have become disabled, because of disease or injury, for useful and efficient service in your current position. (Useful and efficient service means fully successful performance of the critical or essential elements of the position-or the ability to perform at that level-and satisfactory conduct and attendance.)
  • The disability must be expected to last at least one year.
  • Your agency must certify that it is unable to accommodate your disabling medical condition in your present position and that it has considered you for any vacant position in the same agency, at the same grade or pay level, and within the same commuting area, for which you are qualified for reassignment.
  • You, or your guardian or other interested person, must apply before your separation from service or within one year of your separation. The application must be received by OPM within one year from the date of your separation. This time limit can be waived only in instances involving incompetency.

Common Deficiencies in OPM Disability Retirement Applications

  • Incomplete medical documentation; e.g., (copies of diagnostic tests and/or reports are not submitted).
  • Medical documentation is limited and does not contain specific information to show why the applicant is not able to perform his/her duties nor how long restrictions will last.
  • Medical opinions are conclusory rather than giving specific rationale that explains how the medical condition impairs the applicant.
  • Medical reports reference enclosures that are missing.
  • Medical reports are not signed, dated, and/or on physician’s letterhead.
  • Agency physician recommendations (when made) regarding disability are not well documented, e.g., summary statement made with no documented basis for the recommendation.
  • Agency certification of reassignment and accommodation efforts is incomplete (e.g., reassignment or accommodation efforts are completed but not both; attempts to assist the applicant with his/her medical/psychological problems are not documented). Also there is no explanation of why reassignment and/or accommodation is not possible or cannot continue.
  • Information on the supervisory statement is in conflict with information on agency accommodation/reassignment form.
  • Supervisor’s statement is incorrectly filled out (blocks are left blank, e.g., hours of leave used, and/or information regarding proposed personnel actions are not submitted).
  • Supervisor’s statement paraphrases medical report rather than saying what effect the medical condition has had on the applicant that has been observed by the supervisor and/or co-workers.
  • Copy of the position description is not included in package.

If you’re considering OPM disability retirement, you should contact OPM Disability Retirement Attorney Gregory A. Hall for legal assistance. If you retain Mr. Hall to assist with your application for benefits, he can help you avoid many of the pitfalls that cause applications for medical retirement to be denied by OPM.

Gregory A. Hall
Law Office of Gregory A. Hall
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Ph. 303-320-0584
Email: gregory@federallaw.com
Web: www.adenverlaywer.com

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Mar 20

IS BALANCE BILLING LEGAL IN COLORADO?

Categories:

Colorado Personal Injury Law

by admin

WHAT IS BALANCE BILLING

Balance billing occurs when a medical care provider bills an insured the difference between the provider’s full charge for a service and the amount it agreed to accept from the insurance company as payment if full for that service – the negotiated rate. So it’s an attempt by the medical care provider to collect the balance between the full charge for a service and the negotiated rate paid by the insurance company to the provider for that service. The balance billed has nothing to do with co-pays made by the insured.

Colorado law prohibits balance billing in situations where an insured obtains treatment from a participating provider. C.R.S. § 10-16-705(3). The prohibition against balance billing applies to services provided by a participating provider (sometimes called an in-network provider). Illegal balance billing occurs when an unscrupulous hospital or doctor, that is a participating provider, bills the insured for any service it previously billed to the insurance carrier.

So for example, an insured, while in the hospital, is given an aspirin. Without insurance, the hospital charges the patient $5.00 for the aspirin, but the hospital has agreed to accept $1.00 from the insurance company as payment in full for the aspirin. Illegal balance billing occurs when the person who has insurance is hospitalized at a participating hospital but then gets a bill for $4.00 for the aspirin, which is the difference between the full retail charge for the aspirin ($5.00) and the amount the hospital agreed to accept from the insurance company as payment in full for the aspirin ($1.00). So otherwise stated, prohibited balance billing occurs when an insured is hospitalized, then gets a bill from the hospital for services covered by the person’s health insurance plan. It is illegal because even though the hospital agreed to accept the amount paid by the insurance company as payment in full for the service, it turns around and bills the insured for the difference between the retail price and the negotiated rate. If a person obtains treatment from a participating provider, then Colorado law requires the health insurance carrier to shield the insured from having to pay any amount above what the insurance company paid to the participating provider.

Often times, especially when there is a settlement or verdict obtained by the insured on a personal injury lawsuit, medical care providers patently ignore Colorado’s prohibition against balance billing and attempt to collect for services already paid for by the insured’s insurance company. Unscrupulous medical care providers have even been known to send misleading bills to the personal injury lawyer handling the claim for the insured in attempt to recover the balance billed.

WHEN IT’S LEGAL FOR A PROVIDER TO BALANCE BILL

Balance billing may be allowed in situations where the insured seeks services out of network with a medical care provider that does not have a contract with the insurance carrier – such a medical care provider is called a “nonparticipating provider” under Colorado personal injury law. Colo. Rev. Stat. § 10-16-704 provides a scheme for the payment of benefits to an insured under managed health care. The benefit level an insured receives under C.R.S. § 10-16-704 depends on whether there is an adequate network available to the insured and whether the insured receives services from a participating provider or a nonparticipating provider. The statute requires a health insurance carrier, providing a managed care plan, to maintain a network that is sufficient in numbers and types of providers to assure that all covered benefits to covered persons will be accessible without unreasonable delay. Colo. Rev. Stat. § 10-16-704(1).

If there is a participating provider within a reasonable distance from the insured’s geographic area, and the insured knowingly seeks services from a nonparticipating provider, the insurance carrier is only obligated to pay: (i) the lesser of the provider’s bill of charges, (ii) a negotiated rate, or (iii) the greater of the health maintenance organization’s average in-network rate for the relevant geographic area or the usual, customary, and reasonable rate for such geographic area. Colo. Rev. Stat. § 10-16-704(2)(i)(I). If the reimbursement rate described above is not equal to the nonparticipating provider’s bill of charges, the nonparticipating provider may balance bill the insured. Colo. Rev. Stat. § 10-16-704(2)(k).

In sum, if an insured seeks treatment with an out-of-network provider (a nonparticipating provider), then the law does not prohibit that medical care provider to balance bill the insured. Colo. Rev. Stat. § 10-16-704(3) mandates that an insurer pay to an insured only in-network benefits for all services performed at an in-network facility.

YOUR HEALTH INSURANCE COMPANY IS REQUIRED TO MAINTAIN AN ADEQUATE NETWORK

When a network is inadequate because there are no participating providers available, the insurer must ensure that the covered person obtains the covered benefit at no greater cost to the covered person than if the benefit is obtained from participating providers. Colo. Rev. Stat. § 10-16-704(2)(a). An in-network facility is adequate where there are participating and nonparticipating providers: A carrier providing a managed care plan shall maintain a network that is sufficient in numbers and types of providers to assure that all covered benefits to covered persons will be accessible without unreasonable delay.   In the case of emergency services, covered persons shall have access to health care services twenty-four hours per day, seven days per week.   Sufficiency shall be determined in accordance with the requirements of this section and may be established by reference to any reasonable criteria used by the carrier․ C.R.S. §10-16-704(1).

Moreover, in any case where the carrier has no participating providers to provide a covered benefit, the carrier shall arrange for a referral to a provider with the necessary expertise and ensure that the covered person obtains the covered benefit at no greater cost to the covered person than if the benefit were obtained from participating providers․ C.R.S. §10-16-704 (2)(a).

When a covered person receives services or treatment in accordance with plan provisions at a network facility, the benefit level for all covered services and treatment received through the facility shall be the in-network benefit. C.R.S. §10-16-704 (3).

Colorado personal injury law can be complicated. If you’ve been seriously injured by another’s negligence or intentional conduct, you should contact Denver Personal Injury Lawyer Gregory A. Hall. If you retain him, Mr. Hall can help ensure that you’re not illegally balance billed by your doctor or hospital and that the at-fault party pays you a fair amount to compensate you for your personal injuries.

Gregory A. Hall
Law Office of Gregory A. Hall
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Ph. 303-320-0584
Email: gregory@federallaw.com
Web: www.adenverlawyer.com

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Mar 19

DISTINCTION BETWEEN FMLA RETALIATION AND INTERFERENCE CLAIMS

Categories:

FMLA

by admin

The Tenth Circuit recognizes two theories of recovery under 29 U.S.C. § 2615(a) of the FMLA: 1) an interference (or entitlement) theory arising from 29 U.S.C. § 2615(a)(1); and 2) a retaliation (or discrimination) theory arising from 29 U.S.C. § 2615(a)(2). Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006)(citing Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002)). “The distinction between these two theories is important because the elements . . . that apply to § 2615(a)(1) claims differ from those that apply to § 2615(a)(2) claims.” Id.

FMLA Interference Claim

To state a claim for interference under the FMLA, a plaintiff must allege: “(1) that [s]he was entitled to FMLA leave, (2) that some adverse action by the employer interfered with h[er] right to take FMLA leave, and (3) that the employer’s action was related to the exercise or attempted exercise of h[er] FMLA rights.” Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007)(quoting Jones v. Denver Pub. Sch., 427 F.3d 1315, 1319 (10th Cir. 2005)).

FMLA Retaliation CLAIM

To state an FMLA retaliation claim, a plaintiff must allege that: “(1) she engaged in a protected activity; (2) [the employer] took an action that a reasonable employee would have found materially adverse; and (3) there exists a causal connection between the protected activity and the adverse action.” Campbell v. Gambro Healthcare, supra, 478 F.3d at 1287 (quoting Metzler v. Fed. Home Loan Bank, supra, 464 F.3d at 1171). In addition, retaliation claims are analyzed under the burden-shifting architecture of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), whereas the employer bears the burden of proof on the third element of an interference claim once the plaintiff has shown his or her FMLA leave was interfered with. Campbell v. Gambro Healthcare, supra, 478 F.3d at 1287.

DISTINCTION BETWEEN FMLA INTERFERENCE & FMLA RETALIATION CLAIMS

FMLA claims for interference and retaliation differ with respect to the timing of the adverse action alleged. “In order to satisfy the second element of an interference claim, the employee must show that she was prevented from taking the full 12 weeks’ of leave guaranteed by the FMLA, denied reinstatement following leave, or denied initial permission to take leave.” Campbell v. Gambro Healthcare, supra, 478 F.3d at 1287 (citing Metzler v. Fed. Home Loan Bank, supra, 464 F.3d at 1181; 29 C.F.R. § 825.216(a)(1)). “In contrast, a retaliation claim may be brought when the employee successfully took FMLA leave, was restored to her prior employment status, and was adversely affected by an employment action based on incidents post-dating her return to work.” Campbell v. Gambro Healthcare, supra, 478 F.3d at 1287 -88 (citing Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1136-38 (10th Cir. 2003)). A retaliation claim may be brought when the employee “was adversely affected by an employment action based on incidents post-dating her return to work”. Campbell v. Gambro Healthcare, supra, 478 F.3d at 1287-8.

Contact Denver Employment Attorney Gregory A. Hall if you were terminated for exercising your FMLA rights or if your employer interfered with your right to take FMLA leave.

Law Office of Gregory A. Hall
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Ph. 303-320-0584
Email: gregory@federallaw.com
Web: www.adenverlawyer.com

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Mar 14

PROTECTING OLDER WORKERS AGAINST DISCRIMINATION ACT

Categories:

Employment Law

by admin

On March 13, 2012, the Senate introduced a bill entitled the “Protecting Older Workers Against Discrimination Act” (POWADA). The legislation, co-sponsored by Iowa Senators, Tom Harkin (D) and Charles Grassley (R), as well as Senator Patrick Leahy (D-VT), seeks to restore significant protections of the Age Discrimination in Employment Act (ADEA) that the U.S. Supreme Court vitiated in its 2009 decision, Gross v. FBL Financial Services, 129 S.Ct. 2343 (2009). The Gross decision made it much more difficult for ADEA plaintiffs to prove age discrimination by requiring a substantially higher evidentiary burden than for plaintiffs who file claims under Title VII on the basis of race, sex, religion or ethnic origin.

Before the Gross decision, it was well established that an ADEA plaintiff could show discrimination by proving that age was simply one factor motivating the employer’s adverse employment action. Once the plaintiff met this burden of proof, then the burden shifted to the employer to show that it would have taken the same action regardless of the employee’s age. In Gross, however, the Court held that the “motivating factor” standard of proof does not apply to the ADEA. Thus, after Gross, the only way for ADEA plaintiffs to establish discrimination is to prove that “but for” the discriminatory motive the employer would not have taken the adverse action, which is a much higher burden of proof. Moreover, many lower courts have interpreted Gross to require proof that age was the only factor that caused the employer to discriminate.

In addition to its impact on age discrimination, the Gross decision has created uncertainty in other employment and civil rights laws in that the reasoning of the Gross decision can be applied not only to the ADEA, but to any law that requires proof of motivation, unless it explicitly provides a different standard of causation. For example, courts have held that the Gross causation standard applies to the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973, the Jury Systems Improvement Act (JSIA), the First Amendment, and even to retaliation claims under Title VII of the Civil Rights Act of 1964.

If you support workers’ rights, then contact your Congresspersons and tell them to support this important legislation. If you think your ADEA rights have been violated, contacted Denver Employment Attorney Gregory A. Hall.

Law Office of Gregory A. Hall
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Ph. 303-320-0584
Email: gregory@federallaw.com
Web: adenverlawyer.com

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Feb 09

SEXUAL HARASSMENT

Categories:

Employment Law

by admin

Does your boss talk about his sex life in front of you, or does he call you “babe” or “honey” or make other suggestive comments about your body?  Does he make inappropriate comments about wanting to have sex with you?  This conduct could be considered sexual harassment.

If you think you are being sexually harassed, the first thing you need to do is tell your boss that the conduct is unwelcome and must stop.  This will prevent any misunderstandings and prevent your boss from later claiming that he didn’t know that you found his conduct offensive. If the conduct persists or you are then retaliated against, you should follow your company’s policies or procedures for reporting harassment.

Title VII of the Civil Rights Act of 1964 provides remedies for sexual harassment and retaliation for reporting sexual harassment or discrimination. If you decide to pursue your rights through litigation, you will need to timely file a charge of discrimination with the EEOC.

What Is A Hostile Work Environment

A hostile work environment results when your supervisor, co-worker, customer, vendor, or anyone with whom you come in contact with on the job engages in unwelcome and inappropriate sexual or gender based behavior making the workplace intimidating, hostile or offensive. Courts look at the some of the following factors in determining a workplace is hostile:

•Verbal or physical conduct;
•Frequency of the unwelcome discriminatory conduct;
•Discussions concerning a sexual nature;
•Comments about your physical attributes;
•Use of demeaning or inappropriate terms; and
•Use of profane and offensive language.

Additionally, the hostile work environment must be severe or pervasive enough to “alter the conditions of employment and create an abusive working environment.” In order to determine whether the abuse is severe or pervasive, Courts have looked at the following:

•The severity of the conduct;
•Was the conduct physically threatening or just an offensive utterance;
•Did the conduct unreasonably interfere with work performance;
•The effect on the employee’s emotional well-being; and
•Was the harasser a co-worker or someone in a higher position.

Proving A Claim of Sexual Harassment

Proving sexual harassment can be a daunting undertaking.  For example, when thinking about filing a lawsuit, you need to be concerned that what might be an abusive working environment to you may not be considered abusive to someone else. There can be a fine line between sexual harassment and what might be just flirtatious behavior or teasing.  Thus, not only must the unwelcome conduct be subjectively abusive to you, but a reasonable person must also find it objectively severe or pervasive enough to create a hostile environment.

Quit Pro Quo Harassment

“Quid pro quo” sexual harassment occurs where a person in a supervisory position engages in sexual harassment which results in a tangible employment action.  For example, your boss or supervisor, might fire, demote, or deny you a raise or promotion because you don’t go on date or engage in a sexual relationship with him or her.

Potential Remedies Under Title VII

The victims of sexual harassment often suffer from a hostile workplace environment and end up choosing to leave their jobs.  In 1991, Congress amended the Civil Rights Act to so that sexual harassment victims can now recover compensatory damages in addition to back pay, including future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-monetary losses. If you are a victim of sexual harassment, you may be able to collect punitive damages if you can show that your employer acted with malice or with reckless or callous indifference.  In addition, before you resign your position, you should consult with a qualified employment lawyer, since if you voluntarily leave your position as the result of the harassment, you will then have to prove that your resignation was a constructive discharge.

External Costs of Harassment 

Without question, sexual harassment in the workplace has a profound effect on the victims. Studies have shown that sexual harassment causes absenteeism, decreased morale, decreased productivity, increased health care costs, and higher employee turnover.

If you are being harassed, Denver Employment Lawyer Gregory A. Hall may be able to help you secure relief. Call to set up a consultation during which Mr. Hall will assess the strength of your claim and help provide guidance on how to negotiate the legal landscape of pursuing a claim.

Gregory A. Hall
Denver Employment Lawyer
3570 E. 12th Avenue, Suite 200
Denver,CO80206
Ph.303-320-0584
Email: gregory@federallaw.com

Disclaimer:

Thank you for visiting the Blog of Denver Employment Lawyer Gregory A. Hall. This blog provides general information andMr.Hall’s thoughts about various employment law issues, primarily under federal andColoradolaw. The information on this website does not constitute legal advice or the creation of an attorney-client relationship.  You should not make decisions based information contained on this blog, but rather you should seek the advice of a qualified employment attorney.

 

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Feb 09

FMLA Leave for Federal Employees

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FMLA

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Under the Family and Medical Leave Act of 1993 (FMLA), most Federal employees are entitled to a total of up to 12 workweeks of unpaid leave during any 12-month period for the following purposes:

  • the birth of a son or daughter of the employee and the care of such son or daughter;
  • the placement of a son or daughter with the employee for adoption or foster care;
  • the care of spouse, son, daughter, or parent of the employee who has a serious health condition; or
  • a serious health condition of the employee that makes the employee unable to perform the essential functions of his or her positions.

In addition, an employee can use FMLA leave while awaiting approval of a request for OPM disability retirement.

Under certain conditions, an employee may use the 12 weeks of FMLA leave intermittently. An employee may elect to substitute annual leave and/or sick leave, consistent with current laws and OPM’s regulations for using annual and sick leave, for any unpaid leave under the FMLA. (The amount of sick leave that may be used to care for a family member is limited. See “Sick Leave to Care for a Family Member with a Serious Health Condition”) FMLA leave is in addition to other paid time off available to an employee.

If you or a family member are experiencing a serious illness, and you’ve either used up all other forms of leave, or you simply want to save paid leave for future use, then you have the right to invoke the Family and Medical Leave Act (FMLA) of 1993. In order to get FMLA leave, you must have at least 12 months of Federal Service.

If you invoke your entitlement to FMLA, your supervisor must approve leave without pay (LOWP) for you (or substituted leave) and you are guaranteed the time off. Also, when you come back to work, the FMLA guarantees that your job – or a job that’s equivalent in every significant respect – is waiting for you.

Every operating unit in an agency has to notify their employees every year of what they are entitled to under FMLA.

FMLA Essentials

Almost every Federal employee who has at some time completed 12 months of service is entitled to leave under the FMLA. Where you work, the type of appointment you have, or your pay grade should not impact your entitlement to FMLA leave, unless you are serving under a temporary appointment with a time limitation of 1 year or less. 5 C.F.R. 630.1201(b)(2). Even if you’re in a probationary status, as long as you have 12 months Federal service, you are eligible for FMLA leave.

Your supervisor has no choice about approving or denying FMLA leave; if you’re eligible, your decision to invoke it will be approved. Also, supervisors can’t coerce you in any way about your decision.

Unpaid leave for part-time workers, those on irregular schedules, or employees whose schedules shift from part-time to full-time is different.

How You Can Take FMLA Leave

Normally you take as much LWOP (or substituted paid leave) as you need (up to the 12 week limit for full time employees) and you take the time off all at once. However, there are other options, as you might take FMLA leave intermittently to take care of a family member or undergo treatment yourself, or in connection with birth, adoption, or for foster care. You may choose to work a reduced schedule, with the time you work paid, and the remainder covered by FMLA. This means that you work less than your full-time tour of duty and the rest of your tour is made up by LWOP under FMLA or by substituted paid leave.

You can elect to use substituted leave as long as you notify your supervisor that you plan to do so and you do it before the date the paid leave begins. Substituted leave is:

  • Accrued annual or sick leave;
  • Donated annual leave;
  • Advanced annual or sick leave; or
  • LWOP

To Request FMLA Leave

Your supervisor can’t approve FMLA leave unless you request it. You can apply by submitting SF-71 and you need to notify your supervisor 30 days in advance (or give as much notice as possible) of your intent to invoke your entitlement under FMLA.

One important note: you can’t invoke FMLA after the fact, if you initially used sick leave or some other paid leave status to cover your absence. However, if you or your personal representative are physically or mentally incapable of invoking your entitlement to FMLA leave during the entire period in which you are absent from work for an FMLA-qualifying purpose, you can retroactively invoke your entitlement (with sufficient documentation for your supervisor) within two workdays after returning to work.

Documentation You May be Asked to Provide

Your supervisor may require documentation in connection with your request for FMLA leave.  You may be asked to provide documents to support your use of FMLA leave adoption of foster care. For example:

  • Documents about childbirth or adoption from a health care provider;
  • Adoption papers and agency documents;
  • Court documents;
  • Administrative agreements about placement of a foster child; or
  • Attorneys’ records.

You may also be required to provide certification from a health care provider that supports your FMLA request. The certification must include:

  • The dates the condition began;
  • How long it may last;
  • The fact that you are unable to perform some or all of your duties; or
  • The schedule of treatment.

If you are providing care for family members, the certification should state that your support is necessary.

Your supervisor has the right to ask for a second opinion, from a health care provider outside the Department, if they have questions about the original documentation. If the two certifications disagree, a third may be required.

A medical examination (though not treatment) may also be required for you or a family member being cared for to substantiate the request for FMLA, and follow up certification may also be required for long-term conditions.

You may also have to report periodically on your status and plans to return to work.

If you have been using FMLA for your own serious illness, when you want to return to work you may have to provide medical certification that you’re healthy and able to perform your job duties.

When FMLA Ends

If you use all 12 weeks of FMLA, you have no more available within that 12-month period (that began with the first day you used FMLA).

This also applies to the use of FMLA for the birth, adoption, or foster care of a child; and your use of FMLA for those purposes has to take place within 12 months of the birth or placement of the child.

If you don’t use all 12 weeks, the exact number of FMLA hours you use is deducted, and the rest is still be available for any future needs during the same 12-month period (dating from the first day you use unpaid leave).

Holidays and other non-workdays that happen while you’re using FMLA do not count; they are not deducted from the total you’re entitled to.

Other Considerations

Alternative Position. You might be offered an alternative position if you’re using FMLA intermittently or are working a reduced schedule. You may also request an alternative position, though granting one is up to your supervisor. This is only temporary, however; you still have the right to return to your original job.

Relation to Other Types of Leave.  FMLA leave is available in addition to accrued annual leave, sick leave, advanced annual leave, advanced sick leave, donated leave, compensatory time, and regular LWOP (which your supervisor may or may not approve).

You can only use other types of leave in the amounts accrued and up to the limits allowed for them under other policies.

You can use FMLA leave in combination with other types of leave, but other types of leave have to be approved by your supervisor. The key is that you have to decide in advance to use paid leave instead of FMLA leave without pay, and tell your supervisor that’s what you want to do. If you’re using paid leave while under the provisions of FMLA, your hours will all be deducted from the 12 weeks FMLA you’re allowed.

Impact of FMLA on Your Benefits. Health coverage continues while you’re on FMLA, but you have to pay the employee contribution while you’re not in pay status. If you prefer, you can make that payment when you return from FMLA leave.

Retirement and life insurance continues while you’re on FMLA, and you don’t have to make up retirement contributions (although you can if you want to).

Leave Accrual Reductions.  Employees lose their biweekly leave accruals of annual and sick leave if they have certain amounts of non-paid time like LWOP or AWOL. This applies while using LWOP under the FMLA. So if you use a full pay period (or 80 hours) of LWOP, then you’ll lose your leave accruals for that pay period. Each time you use an amount of non-paid time that is equal to 80 hours (or a multiple of 80 – - 160, 240, etc.), you again lose your accruals.

If you believe your FMLA Rights have been violated, contact Denver Employment Lawyer Gregory A. Hall to set up a consultation.

Gregory A. Hall
Denver Employment Lawyer
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Ph. 303-320-0584
Email: gregory@federallaw.com

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Jul 20

Retaliation by Association is Illegal

Categories:

EEO Litigation

by admin

In Thompson v. North American Stainless, LP, the Supreme Court held that an employee who claims he was fired in retaliation for his fiancé’s complaint of sex harassment had an actionable retaliation claim under Title VII. According to the Supreme Court’s 2010 decision, it is an unlawful employment practice under Title VII to terminate an employee’s “close family member” in retaliation for her engaging in protected activity, such as filing a charge of discrimination with the EEOC. This type of claim has been characterized as retaliation by association, since the person being retaliated against is closely associated to the person who engaged in protected EEO activity. Often employers retaliated against the person who engaged in protected activity, but in Thompson a woman filed a sex discrimination charge with the EEOC and three weeks later the employer terminated the woman’s fiancé, who also was employed by the company. The fiancé filed his own EEOC charge and filed a lawsuit, alleging that his termination was in retaliation for his fiancé’s EEOC charge. The trial court dismissed the fiancé’s case, holding that there was no cause of action under Title VII for retaliation against associated third-parties. That decision was upheld by the Sixth Circuit’s en banc decision, but the Supreme Court reversed, reasoning that Title VII’s anti-retaliation provisions were intended to protect against any employer action that could dissuade a reasonable worker from making or supporting a charge of discrimination. The Court emphasized that this is an objective standard and stated that it was “obvious” a worker might be dissuaded from making or supporting a complaint of discrimination if she knew that her fiancé might be terminated in retaliation for making or supporting a complaint of discrimination. The Court warned that retaliation against a mere acquaintance would not meet this standard but declined to identify which types of relationships would. If the person retaliated against was not a close family member, but say just “a friend”, then the viability of the claim would depend on whether the evidence showed that the plaintiff was in the “zone of interest.”

If you have been retaliated against by your employer for engaging in EEO protected activity, contact Denver Employment Attorney Gregory A. Hall at 303-320-0584.

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Jul 14

Non-Compete Agreements in Colorado

Categories:

Employment Law

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In Colorado, C.R.S. § 8-2-113 governs non-compete agreements.  The statute precludes non-compete or non-solicitation agreements except for certain exceptions.  Otherwise stated, most non-compete agreements are void and unenforceable in Colorado, unless the non-compete agreement concerns trade secrets; reimbursement of training costs; the sale of a business; or agreements with executive or management personnel.  The exception for the protection of trade secrets is broad enough that it can cover a lot of circumstances. In addition, solicitation of customers might constitute a trade secret violation under the Colorado Uniform Trade Secrets Act. Even if the agreement fits into one of the statutory exceptions, to be enforceable, there must be sufficient consideration and the non-compete clause must be reasonable in duration and geographic scope.  If you have questions about the legal validity of a Colorado non-compete agreement, contact Denver Employment Lawyer Gregory A. Hall at 303-320-0584 to schedule an appointment. Attorney Hall has handled employment cases since 1995.

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