I subscribe to HRCalifornia Extra a bi-monthly e-mail newsletter on workplace law, produced and distributed by the California Chamber of Commerce. The newsletter cites recent court rulings and gives advice to employers as to what they should do in a particular case.
The reason I mention this is that I can easily see this information turned around to the perspective of the employee (versus the employer). From this other vantage point we can look at the rulings as definitions and affirmations of employee rights. The recommendations given to employers on how they should respond under similar circumstances can actually be viewed as what the employee’s expectation should be for employer’s performance when facing this subject, or circumstances.
Family Medical Leave Act – Returning from protected leave.
So, let me put this spin on the first subject covered in the most recent newsletter, the federal Family Medical Leave Act (FMLA provides for job protected leave from work under certain circumstances). In the opinion of the cited US Appellate court:
If you are a long term employee of a staffing agency and are employed by the staffing agency and the company for which you performed your job duties – the agency and company are considered under this ruling to be joint employers.
Both companies are liable for violating your right to return to your job when FMLA leave is completed.
What Should You Expect from Your Employer?
If you are hired from a staffing agency you should receive information as to the amount of control the staffing agencies and employer will have over you. (They should know what their potential liabilities are.)
The employer where the work is performed should never interfere with your employee rights to FMLA leave and right to reinstatement.
Both parties have the responsibility to always provide an employee returning from a protected leave of absence, such as FMLA, with their previous job or a comparable job.
Employee’s rights to a full trial are zealously guarded.
In another recent case cited in the newsletter, the US Court of Appeals found that employees only need to produce a small amount of evidence to demonstrate that a discrimination claim should be heard by a jury. The Court said that employees' rights to a full trial must be zealously guarded because discrimination claims are difficult to prove without a "full airing" of the evidence and an opportunity to evaluate witness credibility.
A case should proceed if an employee, who is a member of a protected class and qualified for the job, suffers adverse employment action, and similarly situated individuals outside her class were treated more favorably. Adverse employment action can include more strenuous and/or dangerous work assignments, not being included in meetings, restricting employee access to certain areas, and being ignored by supervisors -- all of which occurred in the case being discussed.
As court rulings in cases of interest to employees come up in the future, I will try to bring them to your attention. Hey… I got your back!