Small business must have FMLA policies to avoid lawsuits

May 26, 2009
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In 1993, Congress passed The Family and Medical Leave Act (FMLA). By guaranteeing workers some unpaid time off in the event of a serious health problem, after the birth of a child or to care for a sick family member, the FMLA was touted as an important step forward in creating a more family friendly workplace. President Clinton described the law as, “… one of the most significant pieces of regulation ever put in place to protect America’s families.”

Initially, many small business owners cringed at the thought of the load such provisions placed on their already full plates. These same individuals breathed a sigh of relief upon realizing that the FMLA exempted companies employing fewer than 50 workers. As the FMLA was put into place, the owners of businesses both large and small watched in shocked disbelief as the number of workers suing their employer for mistreatment related to family responsibilities — becoming pregnant, needing to care for a sick child or relative —increased by more than 300 percent. Business owners are generally stunned to discover that more than 1,150 family and medical leave caregiver related lawsuits have been filed in federal and state courts, and in some of these cases, juries have granted awards over $11 million.

“Thank goodness that’s not us,” many small business owners exclaim. “Parental, caregiver and sick leave policies are for the big guys,” one small business owner recently commented. “Such matters really do not affect us.”  A growing body of law known as Family Responsibility Discrimination is proving that beliefs as expressed above are untrue, and that ignoring these issues can lead to civil liability.  All business owners, especially the owners of small businesses, must take the time to acquaint themselves with this quickly evolving area of the law.  This is especially true in light of the fact that both female and male employees have been successful in asserting their discrimination claims against their employers. 

To learn more about Family Responsibility Discrimination, one need only turn on the computer and visit www.eeoc.gov. In response to the growing number of lawsuits and the requests of employers seeking some guidance on the issue, the Equal Employment Opportunity Commission (EEOC) recently provided: Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. 

The guidelines explain that federal Equal Employment Opportunity (EEO) laws do not prohibit discrimination against caregivers per se and thereby create a new protected class. Instead, the EEOC describes circumstances where discrimination against caregivers might constitute unlawful disparate treatment under current federal statutes. The EEOC began examining caregiver issues as it became clear that both men and women were encountering disparate treatment in the workplace as a result of family responsibilities. The goal of the guidelines is to connect family responsibility discrimination and related caregiving issues to current laws.

The EEOC states that several forms of discrimination are prohibited under various federal laws, including those which extend coverage to small businesses. The EEOC also puts small employers on notice that actions under tort law and various state statutes are not necessarily limited based on the number of employees. Indeed, some state and local laws already expressly include discrimination based on “parental status” or “family responsibilities.”

Based on an analysis of the laws and the examples of family responsibility discrimination provided by the EEOC, it quickly becomes obvious that the prudent small business owner needs to set policy within her organization in order to avoid this type of claim. The law and EEOC guidance indicate that stereotyping and inappropriate comments in the workplace form the basis for many of these types of lawsuits. Even the most conservative courts and jurists have underscored the importance of transforming such workplace stereotypes.

Setting a strong policy begins with education. Everyone within the organization must know what type of behavior constitutes discrimination. Every member of your business team should know about the issue of family responsibility discrimination, and be given training regarding the types of conduct that constitute a violation. Small business owners can address the need for education in this area by expanding diversity training programs to include discussions about not only traditional forms of gender discrimination, such as barring women from certain jobs, but also the prejudice that exists against both male and female family caregivers as well.

Once everyone is educated and a serious examination of workplace policies has taken place, the next step involves establishing a “zero tolerance” policy. Every worker must know that family responsibility discrimination or other forms of disparate treatment will not be tolerated within the organization. Such a policy must be clearly communicated to every member of the firm. Additionally, the policy should be revisited on a regular basis. Ideally, workers should acknowledge in writing that they received notice of the policy and that they have read and understand it.

Once in place, the policy must be followed consistently. The entire organization must know that violations of the policy carry consequences up to and including discharge.  Additionally, the policy should establish steps to follow in the event a violation occurs, and a complaint results.  One of the advantages of the small business is flexibility. Some small employers have found that providing a more “family friendly” work environment, by allowing “work at home,” flexible and part-time work schedules to all employees, leads to increased employee satisfaction and increased productivity. The existence of a well articulated and thoughtful policy can also assist in recruiting and retaining high-quality employees.

Family responsibility discrimination is a serious problem in today’s work environment. The statistics indicate that plaintiffs are more likely to win a family responsibility lawsuit than other types of employment discrimination cases. The average award in these types of cases is just over $100,000 and the largest award to date is $25 million. Such a lawsuit can cripple an organization financially as well as in terms of efficiency and worker satisfaction.

Small business owners must recognize that the proportion of caregivers, especially women, who work outside the home continues to significantly increase. The total amount of time that couples with children spend working also has increased. Income from women’s employment is important to the security of many families, particularly among lower-paid workers.

If a small business owner encounters an employee with a complaint concerning their need for family leave, the owner or manager can no longer assume that he is not required to deal with the issue. Business owners in such circumstances should not hesitate, but instead they must investigate and take appropriate action. Today’s employers must evolve as well and recognize, accommodate and respect these differences.

Catherine G. Jones-Rikkers is an associate professor in the Management Department of the Seidman College of Business, Grand Valley State University.

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