Hey Compliance Warriors!
Do you know the rules that apply between your state’s family leave laws and federal FMLA?
If you are in New Jersey, you will want to pay close attention to this recent settlement that cost an employer $195,000 because the employer did not understand the interplay between FMLA and NJFLA. Read on…
Acting Attorney General Matthew J. Platkin announced today that the Division on Civil Rights (DCR) has obtained a $195,000 settlement on behalf of a former corporate marketing director who alleged she was retaliated against – and ultimately fired – for taking pregnancy-related family leave time available to her under State law and seeking a reasonable accommodation related to breastfeeding.
The settlement resolves the ex-employee’s claim that her employer—VCNY Home, a North Bergen-based manufacturer and importer of bedding, bath textiles and other products for the home—violated both the New Jersey Family Leave Act and the Law Against Discrimination in its treatment of her.
In addition to the monetary payment to cover lost wages, emotional distress, and punitive damages, the settlement requires VCNY to ensure its employees are advised of their rights to accommodations related to breastfeeding and pregnancy, and to provide anti-discrimination training for all human resources employees, supervisors, managers and owners, among other reforms.
“In New Jersey, we are committed to protecting the right of workers to have both a job and a family,” said Acting Attorney General Platkin. “No one should be forced to choose between having children and earning a living. Today’s settlement should serve as a reminder to employers to take their workers’ rights seriously, and that we will continue to take action to ensure those rights are protected.”
“New Jersey law provides strong protections to persons who are pregnant or are new parents,” said DCR Deputy Director Rosemary DiSavino. “Those protections include accommodations for bonding, breastfeeding, job-protected leave, and a prohibition against retaliation for parents who exercise their rights.”
According to the complaint in this case, while the complainant was on maternity leave in early 2018, she advised VCNY that once her disability-related leave time for her pregnancy under the federal Family and Medical Leave Act (FMLA) was concluded, she planned to start an additional 12 weeks of leave available under the New Jersey Family Leave Act to bond with and care for her newborn child.
VCNY responded with a letter in March 2018 advising that federal FMLA and state Family Leave Act time run concurrently. The letter directed her to return to work on June 18, 2018, and warned that if she failed to do so, the company would view it as her resignation.
Under New Jersey law, however, an employee who gives birth and first uses federal FMLA leave time to recover from child birth does not exhaust the additional leave time available for bonding available under New Jersey’s Family Leave Act. An employee can begin taking leave under the Family Leave Act when the employee’s leave time under federal law concludes.
The marketing director filed her complaint with DCR in April 2018. Following the complaint to DCR, VCNY permitted the employee to use the leave she was entitled to under the New Jersey Family Leave Act. However, she was fired in October 2018, following her return to work, and subsequently filed an amended complaint with DCR alleging that her firing, in addition to a variety of other adverse workplace actions that preceded it, had been retaliatory.
Specifically, the amended complaint alleged that when the complainant returned to work after giving birth, VCNY deliberately excluded her from projects and meetings in which she had previously been involved. She also claimed VCNY retaliated against her by requiring her to take a two-week business trip to India and China and when she declined to take the trip and requested an accommodation related to breastfeeding, she was fired.
During DCR’s investigation, VCNY officials acknowledged having reduced the executive’s role after her return from pregnancy leave in the summer of 2018. They also admitted to excluding her from some meetings and events, but attributed the changes to a marketing department “restructuring,” and denied any retaliation.
Regarding the two-week international business trip assignment, the complainant explained that she could not go on the trip because she was breastfeeding and offered to assist and support the trip remotely. DCR’s investigation found that VCNY offered to pay for her baby and a childcare provider to travel with her. The executive declined VCNY’s offer and requested to be excused from the trip as an accommodation based on advice from her child’s pediatrician. To support her decision, she provided VCNY with a medical note explaining the specific need for her to stay in close proximity to her daughter due to her daughter’s health and the exposure of “significant health risks” related to international travel to her newborn. VCNY responded by firing her for her “inability or unwillingness to perform an essential function of job.”
DCR issued a Finding of Probable Cause in the case in January 2020 and announced in August 2020 that the case would be transferred to the Office of Administrative Law.
In addition to the monetary terms of the settlement, VCNY must among other things:
- Review and, where necessary, revise its pregnancy leave and accommodation policies to ensure they comply with all relevant laws, including the Law Against Discrimination (LAD), New Jersey Family Leave Act and the Pregnant Workers Fairness Act, which is part of the LAD;
- Provide anti-discrimination training to all company human resources employees who handle and process pregnancy and accommodation requests. The training must also be provided to all VCNY supervisors, managers and owners. Among other things, the training must include a component on implicit bias and pregnancy discrimination.
- Report to DCR annually for the next three years on any pregnancy-related leave requests it receives, as well as any pregnancy-related or breastfeeding-related accommodation requests, and any internal or public agency complaints filed by employees alleging pregnancy discrimination or failure to provide a reasonable accommodation.
This matter was resolved at mediation in the Office of Administrative Law. Investigator Justin Hoffer and Legal Specialist Carlos Bellido handled the VCNY investigation for DCR. Deputy Attorney General Farng-Yi Foo handled the settlement.
To view a Fact Sheet on pregnancy and breast-feeding-related rights under the New Jersey Law Against Discrimination go to: https://www.nj.gov/oag/dcr/downloads/fact_BRST.pdf.