Business Law - Three Situations of Violations

Speaking with the senior vice-president of operations it has been brought to my attention that there are three personnel situations that need immediate attention. His concern is Company X may have violated certain federal acts. My analyses of the three situations are as follows:

Situation A

An employee with two years of service requested leave to be with his spouse as she was giving birth prematurely to twins. The requested leave was granted by a former manager under the FMLA guidelines. The employee has been on leave for eleven weeks and would like to come back to work. The employee is also requesting back pay for the eleven weeks that he has been gone. The new department manager has agreed to let the employee return to his previous position. However, the manager has denied the back pay for eleven weeks while the employee was on FMLA Leave.

Under The Family and Medical Leave Act of 1993, there are three provisions that apply to the above situation. FMLA leave is job-protected leave. After returning from FMLA leave, an employee generally has the right to return to the same, or an equivalent, job with the same pay, benefits, and working conditions. FMLA leave is generally unpaid leave. However, an employee may substitute accrued paid leave (e.g., vacation or personal leave) for FMLA leave. Also, an employer may require an employee to substitute accrued paid leave for unpaid leave. An employee’s ability to substitute paid leave is determined by the terms and conditions of the employer’s normal leave policies. When paid leave is substituted for unpaid FMLA leave, the employee receives pay while on leave and receives the job protections of the FMLA. While an employee is on FMLA leave, an employer must maintain the employee’s group health insurance coverage. Both the employer and employee continue to pay their regular shares of an employee’s health insurance premiums. “(Mayer, 2012, p. 2)”

According to the law, the employee is entitled to twelve weeks of leave in a twelve month period for the birth of his child, and to care for the newborn child within one year of birth. He is also entitled to return to the same or equivalent position, and rate of pay as when he left to go on FMLA leave. In this situation, Company X has agreed to the employee’s return, and reinstated his previous position.

In review, Company X has not violated any of the provisions of the FMLA Law. As stated in the provisions, the employee may use paid time off to supplement his income while on FMLA leave. Company X has no obligation to pay the employee while on FMLA leave. However, going forward, the best practice would have been for the department manager to refer the employee to our human resource department so he could be advised of his options regarding paid leave and the FMLA Law. This would have prevented a great amount of confusion.

Situation B

A sixty-eight year old employee, who has been with Company X for forty-two years, was given a score on their annual performance review of “above average”. The employee was later denied a promotion due to age. A thirty-two year old co-worker was given the promotion. The co-worker received a score of “adequate” on their annual performance review.

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals from employment discrimination that are forty years of age or older. This act also protects applicants along with current employees. The law states “it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training”. (Age Discrimination in Employment Act of 1967 Pub. L. 90-202) It is encouraged, and permitted that employer’s favor older employees based on their age even when the younger employee who is negatively affected, is forty years of age or older. It is also unlawful for an employer to retaliate against any individuals opposing discriminatory employment practices related to age. This would include filing a discrimination charge, testifying, or participating in an investigation, proceeding, or litigation. The act applies to organizations that employ twenty or more people. This would include state and local governments, employment agencies, labor organizations, as well as the federal government.

With this information known,