Labour and Employment Law, Term Paper Example

Scenario A

Family and Medical Leave Act

The situation involves an employee who has gone on a legitimate leave after using the official channels for approval this leave lasted 11 weeks and the company does not intend to pay the employee for the leave days. The family and medical leave act of 1993 provides for family or medical leave of up to 12 weeks in every rolling 12 month period that an employee has worked. The act applies to all public agencies including schools regardless of the number of employees. For employers in the private industry, it applies to employers who have had 50 or more employees either in the current or the preceding year working within a radius of 75 miles. The act further stipulates a person as qualifying for family and medical leave if it involves taking care of a spouse or an infant who falls under the care of the person so named or for personal medical reasons where the medical condition requires that one be allowed to take time off work either to rest or recover. (FMLA 1993). The act also stipulates that once the leave is taken in respect of FMLA, the employee has an option to take it out of his paid leave or unpaid leave days. The scenario presented here poses two issues.  The first issue is whether the employee qualified for FMLA leave. This is apparent considering the fact the employee applied for the leave in light of the fact that the spouse was sick and that the employee informed the employers the circumstances leading to the leave.  The second factor is whether the employee fulfilled the time required for one to qualify for the 12 weeks of leave. The minimum requirement is for the employee to have worked for over 12 months which should not necessarily have been consecutive (FMLA 1993). In our scenario, the employee had worked for 2 years which make him qualify for the 12 weeks leave.

As a director, I would give consideration to the following facts before deciding on whether the employee was qualified for payment. First the employee should be given an option to offset the leave days against the paid leave days and receive the due payment for these days. Therefore if the employee had paid leave days pending then he should receive the due payment for the days. In due consideration of these underlying facts, there is potential legal exposure if the employee had any pending paid leave days that were not  paid for in lieu of the leave. The employee followed all the legal requirements for this leave; therefore a failure by the company to pay him any money due to him will be a breach of responsibility. An employee is allowed to take leave and use any paid leave or pending personal leave days (University of Washington).  Since the FMLA does not provide for paid leave, no violation has been committed under all the considerations. He should therefore be given his pay for any paid leave days that are pending and reinstated to his position at work

Scenario B

The Age Discrimination in Employment Act (ADEA)

The age discrimination act specifically bars employers from denying employees any privileges because of their age.  The scenario involves an employee who was passed for promotion on the grounds of his age. This is despite the fact that the employee had an outstanding rating in the performance appraisal as well as having served the company for an impressive period of 42 years.   The age discrimination in employment act (ADEA) provides the employer for an opportunity to waive such rights but under the condition that the employee is to give a written and signed waiver agreement and specific to the rights that are being waived. It should be waived for a material consideration and as well it states that the affected person should be given an opportunity to seek legal counsel. Finally the person should be given 21 days to make reflect on the agreement as well as seven days to revoke it if he is not comfortable with it (ADEA 1967). The ADEA states clearly that the employer should have twenty or more employees for each working day of the current or the preceding year. The ADEA applies to all employers, labour organisations and employment agencies that meet the above criteria. Those exempt from the provisions of ADEA are fire-fighters, federal legal employees, legal and personal assistants of public office holders as well as law enforcement officers (Feder 2008)

Employee B was clearly discriminated against on the basis of his age. This was done in disregard of the fact that his rating was impressive. Further he was not given a chance to decide whether to waive his rights, neither was there in indication on his side that he intended to waive his rights as provided by ADEA. This is an outright violation of employee B’s rights. According to the US Equal Employment Opportunity Commission, in the year 2008 USD 82 million was recovered in fines from charging parties. This should inform the employer of the grim statistics hence the employer should understand that a serious violation has occurred ( EEOC)

Scenario C

Americans With Disabilities Act

Scenario C involves an applicant who despite the fact that he is fully qualified for the job, he cannot get the job due to his physical impairment. He cannot access the office facilities since he is confined to wheel chair. This makes it difficult for him to ride the elevators in the office. The Americans with disabilities act provides for the employment of people with disabilities provided that they can make use of the facilities provided by the employer with or without any adjustments. The material adjustments involves but is not limited to provision of special facilities to enable the disabled person perform their functions.  The material adjustments involve changing the functioning of an entire process or redesigning the building in which these functions are being carried out. The person being considered in this case does not require any special equipment save for the fact that he requires adjustments made to the elevator to enable him use the dials. An employer is give a leeway where they disability of the employee will compromise the quality and the delivery of the employee. This is however subject to consideration of the capabilities of the employee.

In our specific case, the employee is qualified for the job and as the act stipulates the employee can perform his duties without material adjustments to the facilities in the office. The employer however chose to turn down the applicant since it would cause undue hardship to them. In this case undue hardship is intended to mean the hardships that will impair the company’s performance and ability to meet its targets. If the employee will derail the organisations goals this is considered to be undue hardship to the company.  This is however not a fair argument since the employee could perform all his tasks with minimal interference with the companies activities. The decision of the company X to turn down the applicant in this case therefore amounts to violations of the persons with disabilities act and it creates a loophole for legal exposure and potential litigation against the company. The Equal employment opportunity commission demands that the person should have a record of impairment that hinders his performance for him to be denied an opportunity on the grounds of his disability and this is not the case in this scenario. It therefore amounts to a violation.

References

Age Discrimination. The U.S. Equal Employment Opportunity Commission.  Retrieved 20 July 2009, Available:http://www.eeoc.gov/types/age.html

Disability Discrimination.  The US Equal Employment Opportunity Commission. Retrieved 20 July 2009 Available http://www.eeoc.gov/types/ada.html.

Feder Jody (2008). CRS Report for congress. Retrieved 29 July 2009. Available: assets.opencrs.com/rpts/RL34652_20080905.pdf –

The Family Leave and Medical act 1993. Retrieved 20 July 2009. Available ww.dop.nv.gov/FMLAOverview.pdf.

University of Washington (2007). Family and Medical Leave Act: Eligibility and Entitlements. Retrieved 05 August 2009 from http://www.washington.edu/admin/hr/roles/mgr/leaveholiday/fmla/index.html.