Employment Law and Labor - Essay Example

Employment Law and Labor: Situation Analysis John Smith XYZ Employment Law and Labor: Situational Analysis Situation A. Employee A has been with Company X for two years. Employee As spouse gave birth prematurely to twins. He requested leave to be with his spouse, which was granted. Employee A has been on leave for 11 weeks, and has asked to return to work, and to be paid the withheld salary from his 11-week leave. The previous department manager left the company during Employee A’s leave. The new manager has agreed to Employee A’s return to the previous job, at the previous rate of pay. But the manager has denied the request for the 11 weeks of withheld salary. In Situation A, it appears that the company has met all the requirements of the Family and Medical Leave Act of 1993 (FMLA) requirements. For the employer, one requirement is that the company be large enough, and would only apply to those firms with over 50 employees (yale.edu, 2001). This company has over 75 employees. One of the key elements of the federal law is that Family Medical Leave Act (FMLA) allows either husband or wife to take a leave of absence from their work to care for a newborn after birth. This absence is not required to be paid, and can be an unpaid leave (yale.edu, 2001). The employee was with the organization for 2 years, and the FMLA requirement states that only one year of working at least 1,250 hours a year is necessary for the unpaid leave (yale.edu, 2001). This would be an average of around 25 hours per week of time worked. Under most circumstances such as a birth, the law states that a 30 day advance notice be given if the leave is known about in advance (yale.edu, 2001). It does say that he was given permission ahead of time to be with his spouse and it was company approved. It states that the firm returned the employee to his previous position title along with his previous rate of pay, but denied pay for the time not working. These three factors appear to be in accordance with the federal law. Employees must be returned to the same position, title, and pay rate as when they left. No requirement in the federal law requires that pay be made for the time missed (yale.edu, 2001). Situation B. Employee B is 68 years old and has been with Company X for 42 years. During the annual performance review last month, it was determined that Employee B was doing above average work in the department. Employee B was denied a promotion due to age. A co-worker given the promotion, who is 32 years old, received a performance review of adequate. The Age Discrimination Act of 1967 recognizes that older employees face potential discrimination in the workplace because of age, and the Act tries to put older employees on the same footing as younger employees in regards equal treatment at work. The Act applies to all employers with over 20 employees, so Company X is affected by this law. The law is directed at protecting anyone over the age of 40 from potential discrimination at work (finduslaw.com, 2008). Three types of discrimination are mentioned by finduslaw.com (2008). The first is discrimination by unfair and inconsistent treatment with regards older employees. The second type mentioned is discrimination by disparate impact which is when a neutral company policy in this area would still somehow negatively affect older workers. This second type of discrimination looks at the consequences of company policy instead of what is written out in company policy manuals. The third type of discrimination is age related harassment and states that a work atmosphere that creates turmoil and problems that would be directed negatively toward the older employees is not acceptable (finduslaw.com, 2008). In this case, Employee B is 68 years old and been with the company many years. He had a performance review and it was stated that he was doing above average work. Despite doing above average work, he was not given a raise. On the other hand, a younger colleague who is 32 years old did receive a raise, and was only given a performance review of ‘adequate’. Based on this information, it appears that there is a strong possibility that age discrimination is occurring against Employee B. Finduslaw.com mentions this type as unfair and inconsistent treatment against older employees (finduslaw.com, 2008). Possible defenses that the company could include such things as: (1) the employee was in error due to poor work performance or for other legitimate work performance causes; (2) there were other legitimate reasons involved besides age involved such as meeting qualifications of the job or a seniority system; (3) the guidelines for the job are reasonable in limiting the performance of older individuals; or (4) arbitration occurred where an agreement was reached. Since it is not mentioned if the two employees involved had other legitimate reasons besides age for not giving Employee B a pay raise, it would appear that there is a reasonable possibility that the company did violate the Age Discrimination Act. Situation C. Applicant C requires the use of a wheelchair to move about due to paralysis of both legs. The position Applicant C applied for requires movement about the entire company offices, including using the elevator to access any of the seven floors in the headquarters building. In order for Applicant C to make use of the elevators, the key pads in two of the four elevator cars would have to be lowered four inches to be accessible. Applicant C was denied employment, and was told the denial was because his/her employment would cause undue hardship on Company X. The Americans with Disabilities Act of 1990 would apply to all employers that have 15 or more people working for them (U.S. Equal Employment Opportunity Commission, 2010). One key part of the Act is what defines a disability. According to the EEOC, a disability is any type of affliction that impairs a key life activity (EEOC, 2010). In this case, not being able to walk and being confined to a wheelchair would meet this requirement of a major life activity being impaired. The law states that an employer must provide reasonable accommodation to both current employees and anyone in the hiring process or work related environment process. If an employer could only comply with the request through a very large structural building change, or an unreasonably high cost to the business, then the employer would most likely be exempt from this federal law. However, employers are required to meet any reasonable demands in this area (U.S. Equal Employment Opportunity Commission, 2010). Another factor is if the employee requires the use of the elevator in order to carry out his job functions or not. In this case, it does state that the employee must have access to seven floors of the building in order to fulfill his job duties. Hence, there is a requirement for the job to have use of the elevator (U.S. Equal Employment Opportunity Commission, 2010). In this case, Company X’s claim that lowering two out of the company’s four elevator keypads would cause unnecessary hardship is most likely not going to hold up in a court of law if the individual who was denied employment decided to bring charges against the company for being in violation of the Americans with Disabilities Act of 1990. The company would have to show that this is a major expense, and from the description given it appears to only be a relatively minor expense and change. References FindUSlaw.com (2008). “Age Discrimination in Employment Act of 1967---ADEA—29 U.S. Code Chapter 14” Web. http://finduslaw.com/age_discrimination_in_employment_act_of_1967_adea_29_u_s_code_chapter_14 accessed 27 December 2010. U.S. Equal Employment Opportunity Commission (2010). “Disability Discrimination” Web. http://www.eeoc.gov/laws/types/disability.cfm accessed 27 December 2010. Yale.edu (2001). “Your Rights under the Family and Medical Leave Act of 1993” Web. http://www.yale.edu/hronline/forms/documents/FamilyMedicalLeaveAct2.pdf accessed 27 December 2010. Read More