Professional Service Agreement

Week In Review

July 12, 2016

FMLA Notice Failed to Inform Employee of Job Restoration Right

A federal court has held that because the notice sent to an employee failed to inform him of his right to job restoration under the Family and Medical Leave Act (FMLA), and because there was sufficient evidence to show the employee would have structured his leave differently had he known his job was protected, the employee’s claim of FMLA interference can proceed. Pointing out that, under the FMLA regulations, a statement of the employee’s right to job reinstatement must be included in the rights and responsibilities notice an employer must send to an employee who may be entitled to FMLA leave, the court observed that the employer did not contest that the only relevant document in the record failed to show notice of the employee’s job restoration rights. Therefore, the court held that the employee established that the employer’s notice did not comply with the regulatory requirement.

Employer Violated USERRA in Failing to Reemploy Army Reservist to Same Position upon Return

A federal court has held that an employer violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) when it failed to reemploy an employee after military service. The court rejected the employer’s defense that the employee offering to "help temporarily if you should need me" was sufficient to assert re-employment rights under the USERRA. The court held that the USERRA does not require an employee’s application for reemployment to follow any particular format. The court also rejected the employer’s argument that putting the employee in the same level position, but in a different region satisfied its obligations. The court noted that USERRA requires placement back in the same position, even if that means terminating the individual who filled in while the employee was out.

McDonald’s Franchisee Sued for Firing Employee with HIV

The Equal Employment Opportunity Commission (EEOC) has filed suit against a McDonald's restaurant in Arkansas, claiming it violated the Americans with Disabilities Act (ADA) when it fired an employee because of his HIV-positive status. The EEOC's suit alleges the employer violated the ADA when they terminated the employee within days of learning of his HIV status. The suit also alleges the employer violated the ADA by having a policy requiring all employees to report the use of prescription medication.