Make Your Voice Heard on FMLA

By Rebeldad Brian Reid

It was almost exactly five years ago that my parental leave ended and I prepared to go back to work. Thinking about saddling back up to my desk every day was not appealing. The bonding and 3 a.m. feedings and first smiles and desperate calls to the pediatrician changed me in a fundamental way. I couldn't go back to being the guy who put in 12-hour days at his desk and who traveled at the drop of a hat. I had more important things to attend to.

If I were to pick, the decision to take family leave ranks up there as one of the single most life-altering choices I've ever made. And I still thank my lucky stars that I worked at a company with a generous policy and lived at a time when family leave was a protected right.

Family leave is on my mind this week because of a chilling little note in the Federal Register. It seems that the Labor Department is interested in hearing people's experience with the Family and Medical Leave Act, the grand 1993 compromise that (finally) codified the right of people to stay home with their newborns or care for ailing family members (usually).

So, what's the administration doing poking around FMLA? According to an Associated Press story:

"This is meant to be a very objective review," Victoria Lipnic, assistant secretary for the Labor Department's Employment Standards Administration, said in an interview with The Associated Press.
"We're genuinely in search of information and having looked at the issues now for a number of years ... it became apparent we really needed some fresh thinking on this. I am hoping that is what all of this will yield," she said.

I happen to agree that we could use some fresh thinking -- paid leave anyone? -- but I fear that the Labor Department may have other plans. About two years ago, there was a minor flurry of concern over widespread rumors that FMLA was in for a gutting, with further restrictions on what could and could not be covered under the law. A number of groups raised the alarm, and the issue quietly died. No one seems to know enough to declare whether this marks a new threat or something more benign, though Debra Ness from the National Partnership for Women & Families sounds worried in that AP story. And erring on the side of caution never hurts.

So while I don't want to damp discussion today, I would like to ask you all a favor: Before you comment below about your leave experiences, first send your thoughts to the nice folks at Labor (whdcomments@dol.gov). I hear they're looking for some fresh thinking.

Brian Reid writes about parenting and work-family balance. You can read his blog at rebeldad.com.

By Brian Reid |  December 7, 2006; 7:12 AM ET  | Category:  Flexibility
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Yes, I remember reading about a year ago that employers were disturbed by the fact that family leave could be used on non-contiguous days. They said it disrupted work to have people disappear without notice for a day, or two days, or a week at a time for family reasons. I imagine this is true, but after your sick days are all used up, what happens if you or your kid gets sick for one day, if you don't have access to family leave? It seems to me that without FMLA employers would select for single and childless workers just by virtue of the fact that workers with kids would get fired because their kids get sick (as kids are wont to do). I guess that's up to the employers, but do we really want to decrease the child production rate here: it's at replacement level, a good place to be. I guess if it decreased, we could replace the population with immigrants but it seems to me that this is not really what the country wants

Posted by: m | December 7, 2006 7:39 AM

"I guess if it decreased, we could replace the population with immigrants but it seems to me that this is not really what the country wants"

Sounds like a good idea to me!

Posted by: Anonymous | December 7, 2006 8:09 AM

M- Once you have used up your sick leave most companies will allow their employees to take some unpaid leave. When does FL start to kick in? I don't know how companies are supposed to moniter this situation. Employee X takes 2 days off one week, 3 the next, then a week then 1 day the next week - due to a "sick mother," but really he just wants days off. Are employers supposed to literally "police" the leave policy?

I'm not arguing againt the Family Leave Act, but seems like the potential for abuse is very high if employees can take sporadic days off due to a "family situation." Secret Government Police?

I am waiting for the post on France, Sweden and other Utopian countries where parents get a year off on the public dole after the birth of the child.

Posted by: cmac | December 7, 2006 8:16 AM

Cmac,

When I took FMLA I had to fill out forms that were signed by HR and my boss detailing why I would be out and for how long. I took a week of PTO, 5 weeks on short term disability and then two months of FMLA. I think the most important part of FMLA is that they have to hold your job for you.

You have to use all of your vacation before you can take FMLA.

Posted by: scarry | December 7, 2006 8:22 AM

"I guess if it decreased, we could replace the population with immigrants but it seems to me that this is not really what the country wants"

No, we don't want that we have enough people in this country already. How about we take care of our senior citizens first?

"Sounds like a good idea to me!"

Sounds like a great plan, then this country can be just like the crappy ones that they come from.

Posted by: Anonymous | December 7, 2006 8:26 AM

"Sounds like a great plan, then this country can be just like the crappy ones that they come from."

Where did your ancestors come from? Guess it wasn't one of the "crappy ones" mine came from.


Posted by: Anonymous | December 7, 2006 8:32 AM

can someone please post the facts on what FMLA covers? I had my kids way before this was available so I wouldn't know the details. It seems like it is a no-brainer on keeping it though. I read Brian's post as a call to make it stronger...if so, how specifically?

Posted by: dotted | December 7, 2006 8:33 AM

>

Well I don't know about you but where I came from FML was unpaid, so if this guy just wanted days off then he was going to have it deducted from his salary.

"I guess if it decreased, we could replace the population with immigrants but it seems to me that this is not really what the country wants"

>

Well, the young generation's paycheck deductions pay for social security for the seniors, so it's good to have lots of young workers, but the immigrants who tend to make up the majority of immigrant population are on the low end of the earning scale so they don't necessarily help with that. But let's not digress.


Posted by: m | December 7, 2006 8:47 AM

Ya know, I hadn't even considered using the FMLA for my husband when our baby comes, and he works for Stryker Corporation, which is huge. How on earth did we miss this?!?! So, I can take 12 weeks (I'll get 6 paid with sick, annual, and donated leave), he'll be with me the first 2 (using paid vacation time), then he could take 12 weeks of FML after I go back to work. The baby will be almost 6 months by the time his FML expires, and we can both be back FT with salaries when the baby goes into daycare.

Am I missing something here? What's the catch? Surely it's not as simple as this...

Posted by: atb | December 7, 2006 8:49 AM

FMLA allows up to 12 weeks of unpaid leave for employees who have worked there a year and have medical emergencies in their families (direct parent or child). It applies to companies with over 50 employees.

Companies can always fire or lay-off people who abuse the system. I am not sure I feel that employers have it so bad.

Posted by: alex. mom | December 7, 2006 8:50 AM

Actually, I think if you work in DC it is 16 weeks. However, FMLA is not paid, so you won't have a salary during this time.

Posted by: scarry | December 7, 2006 8:51 AM

Who is actually going to pay for it? companies, so then they lower salaries, or the govt, which is really you and me, so we have to pay more in taxes. I'm all for helping those who can't help themselves, but really, people should figure out how to pay for their leave. It's not that difficult.
After the leave, they have many more things to pay for, so really, you can make it work.

Posted by: atlmom | December 7, 2006 8:52 AM

http://www.dol.gov/esa/whd/fmla/


Here you go atb.

Posted by: scarry | December 7, 2006 8:53 AM

Unless you are of Native American descent, you also count as the product of immigration. So get off your high horse. There are many legal productive immigrants who keep the wheels of this country turning.

On the question of FMLA, as the days are unpaid and as long as an employee can document while they were out, what is the problem?

Posted by: Yo | December 7, 2006 8:53 AM

There has to be some sort of negative to FMLA. As nasty as corporations are, I would think they would find some way to punish you for using the system, despite the fact that it's protected by law. I work for the government, and they don't even blink when you mention FMLA. OF COURSE you'll use it with the birth of a child. Now, I don't know how they feel about a FATHER using it. More double standards...

Posted by: atb | December 7, 2006 8:56 AM

"I guess if it decreased, we could replace the population with immigrants but it seems to me that this is not really what the country wants"

Sounds like a good idea to me!

I think this comment has ruffled some feathers. I don't care who comes here, but I was born here and I have the right to have children too.

Posted by: Anonymous | December 7, 2006 8:58 AM

Scarry, thanks for the url tip. Now I know what FMLA is and isn't. According to the rules, it most definitely applies to both fathers and mothers of newborns...children in general actually. Since it is unpaid, I don't see the issue, expect for work coverage and that is handled by making employees notify their employer immediately. I could see some abuse possible in the use for physical therapy.

Posted by: dotted | December 7, 2006 9:00 AM

So, my next question, what is considered a "newborn"? Up to 3 months? Up to 12 months? This seems like a sticky point.

Posted by: atb | December 7, 2006 9:05 AM

cmac, I did a teeny bit of work on this for a company a few years ago, so I'll pass along my understanding (and hope for clarification from someone who knows more).

First, the employer has every right to request documentation that there is an actual medical condition involved. In general, employers have the right to ask employees to jump through some hoops to use FMLA leave -- use all vacation and sick leave first, provide advance notice that they intend to use the FMLA leave, provide documentation of the medical condition, etc. So yes, they do expect employers to "police" FMLA leave -- the same way that employers already police vacation and sick leave.

Second, I agree that most employers do allow you to take unpaid leave once you run out of sick and vacation time. But not all employers do. Just the other day, we heard from a woman who was fired for taking off two days when her injured son returned from Iraq. And other employers refuse to let you use your leave to take care of other family members, too -- so if you've got a sick kid or aunt to take care of, you'd be SOL. So the concept of FMLA was to provide some basic job protections when people face those sorts of crises.

BTW, to answer another question, the basic parameters of the law are that you can get up to 12 weeks unpaid leave to deal with a documented family or medical situation. Your employer does not need to keep your specific job open if they need it filled, but they have to return you to something comparable. I believe you can only use that 12 weeks once every 1-2 years. Oh, and the law applies only to companies with 50+ employees, so anyone working at a small company isn't covered.

One other clarification for the non-lawyer types (though that seems to be a minority on the board!): DOL is an agency, not Congress, so it does not have the right to revoke FMLA entirely. But what it can do is redefine certain terms that determine when the law applies -- so, for example, DOL could amend its regulations to clarify that only, say, parents and children qualified as "family" covered by the Act, so you'd be SOL if you had that sick aunt. Or it might say that FMLA leave must be taken all at once, so if you had a child with a recurring weekly doctor's appointment, that wouldn't be covered.

In other words, they're about to set a lot of lawyers loose to tell everyone what the law means and how it applies. And you know what happens when you let lawyers (like me) at something. :-) So if you care about the issue one way or another, you should submit comments to DOL.

Posted by: Laura | December 7, 2006 9:11 AM

I work for a state agency, and we are told FMLA applies equally to both sexes after a child is born. A father can take FMLA as easily as a mother can; several new dads who work up here with me have taken it recently, in fact.

Posted by: John | December 7, 2006 9:12 AM

Great call to action, Brian. Can't wait to weigh in with Dept of Labor.

For those wondering more about FMLA details, there are several websites with more info. FMLA provides for up to 12 weeks of unpaid, job-protected leave to care for a family member. Several restrictions -- you need to work for a company with more than 50 employees, need to have been in the job for at least a year, etc.

Posted by: Leslie | December 7, 2006 9:18 AM

I found the answer to the "newborn" question:

"An employee's entitlement to leave for a birth or placement for adoption or foster care expires at the end of the 12-month period beginning on the date of the birth or placement, unless state law allows, or the employer permits, leave to be taken for a longer period. "

Posted by: atb | December 7, 2006 9:20 AM

atb: Have your husband check with his HR dept to be sure your plan will work. In my co. an employee gets 12 weeks for the birth under FMLA. If he/she uses vacation or sick leave to cover some of that time it counts against the 12 weeks total that they can take off for that particular event under FMLA rules. If your husband takes 2 weeks as vacation he'd only get 10 weeks unpaid.

Posted by: HR GIRL | December 7, 2006 9:20 AM

Laura- Thanks for the details! I've now gone back to look, and there are plenty of places that allow the employer to say "no" to FML time. It looks as though as long as you give them advance notice and take the leave in one lump sum, so to speak, maternity/paternity is pretty well protected. You may have to eat your annual and sick leave first, but at least that's paid! Unfortunately, with no vacation or sick time, if you kid becomes sick after you've returned to work, you're in trouble.

Posted by: atb | December 7, 2006 9:30 AM

This is the comment I just sent:

My mother lives overseas and is not aging well. She is by herself and I am an only child. She had to have major surgery a year and a half ago and I had to be there for it. She was in the hospital almost three weeks. As it turned out, I would not have qualified for FMLA because I had not been with my company a full year by that point, but they essentially applied the FMLA rules anyway; they let me use all my vacation time and then gave me unpaid leave. I cannot tell you what difference that made. While being without pay was difficult (and would have been more so had the month I stayed away turned into two or three or six), I cannot imagine facing a choice between losing my job and letting my mother go through it alone.
I imagine you will receive hundreds of testimonials from parents who benefitted from FMLA leave to take care of sick children. (Anecdotally, I heard of someone who was granted intermittent leave to bring his young child, who had leukemia, to medical appointments--imagine what alternative a parent like this would face if he risked losing medical insurance because he is late for work two or three times a week!) But the other important aspect of FMLA is that it allows us not to face heartbreaking choices when it comes to our sacred obligations to our parents. In this country of immigrants, all too often they are far away. Even when they are in the country, the "American dream" often leads families to scatter in search of opportunity, and nobody is nearby. It is so important as our parents age that we be given some peace of mind and know that we can promise we'll be there for them.
I don't know whether you are considering any changes to FMLA, but if you are, please make leave more available, not less. It is the only humane thing to do.

Posted by: aging mom | December 7, 2006 9:34 AM

Thanks to all for drilling down into the nuts-and-bolts specifics. And special thanks to "aging mom" for noting that FMLA is not solely a new-kid thing. Though I don't have the stats at my fingertips, it strikes me that maternity/paternity leave may not even be the most common use of FMLA (personal medical issues, I believe, was number one). Lemme see if I can find those numbers ...

Posted by: Brian Reid | December 7, 2006 9:39 AM

I work for a quasi government agency and my DH is a federal employee. We both had no problems using FMLA for the birth of our child. We also have no problems using sick days to take care of our kid. When something like day care closes due to some non federal holiday, I do choose to take annual leave. But I imagine, I could get away with calling it FMLA. Since FMLA is unpaid, the company does not loose anything but the fact you are not there during that day. In some cases a company may hire a temp for an extended FMLA period. But they are not paying you, so the compensation they gave to you would just go to the temp. No serious loss of money. I do see men and women taking FMLA in government for the birth of child. What is interesting is men, seldom take the 12 weeks alotted to them. Even if they have enough sick and annual accumlated for it to be fully paid for. I think it is just a gender issue that is irrelevant to the employer. I don't see the government having issues with men leaving work for 12 weeks as men feeling like they can't leave. There is a lot of internal psyche at play. Even when OMB suggested paid 12 weeks maternity/paternity leave, a lot of men in management said they probably would only take a month. So what does that say about men? About work culture? About gender sterotyping?

Posted by: foamgnome | December 7, 2006 9:40 AM

Found it: the Labor site is down, but according to my notes (http://www.rebeldad.com/2004_06_01_archive.html), 52.4 percent of all FMLA leave is taken for personal health. 18.5 percent is for new-baby care.

Posted by: Brian Reid | December 7, 2006 9:43 AM

WRT FMLA leave being "unpaid", doesn't everyone's companies continue to acrue benefits during this time?

In other words, does your healthcare coverage (employer paid portion) lapse while you are on FMLA? Because if not, bet your butt that's relevant.

"Instead of taking any steps to regulate/lower the costs of healthcare, hey why not allow companies to pass more of those costs on to the workers? Hey, great idea!"

Posted by: Anonymous | December 7, 2006 9:45 AM

Most new dads who work with me came back to work early so they could get some rest!

Posted by: John | December 7, 2006 9:46 AM

At my husband's company, he was told he could use the leave however he wanted - an hour a day, a day every other week, whatever. It was great after our kids were born, and he took off a month after one and 3 weeks after the other. What a big help.
I know a family who each took off 12 weeks after the baby, consecutively - so someone was home with the baby for 6 months or so. So many people told the dad: that's great that your company allows that - when it's THE LAW.
I think it's a great law and am appalled that companies would tell people (before it was passed) that they had to choose between their family and their job. How do they suppose to get loyal employees that way?

Posted by: atlmom | December 7, 2006 9:48 AM

People should remember that the "3 month" FMLA is unpaid and therefor really only usable by people with a LOT of savings. Due to my first child's illnesses and daycare/school closures (remember you can't take sick leave when the schools close and your work doesn't- which equals about 3-4 days a year). In the last 9 months I stayed home with my oldest every sick or vacation day as my wife saved up her leave. I have 50 hours of leave and will take 6 days(!) off when our new one is born. It's not that I don't WANT to take three months off, it's that... I would zero out all of our cash savings in the process. And I ran the numbers, we would be at zero. FMLA ONLY means you can't get fired and there's literally no other benefit that I can see.

Posted by: Bethesdan | December 7, 2006 9:55 AM

to anon 9:45

You medical coverage generally doesn't lapse, but there are circumstances that were very complicated and full of jargon that I couldn't wrap my non-lawyer head around in which it does lapse. That's an issue you'd certainly want to ask HR about.

Posted by: Anonymous | December 7, 2006 9:57 AM

From the dept of Labor website:
On the other hand, FMLA does not require that employees on FMLA leave be allowed to accrue benefits or seniority. For example, an employee on FMLA leave might not have sufficient sales to qualify for a bonus. The employer is not required to make any special accommodation for this employee because of FMLA. The employer must, of course, treat an employee who has used FMLA leave at least as well as other employees on paid and unpaid leave (as appropriate) are treated.

I did not see anything about forcing an employer to continue to pay benefits as well. My guess is they are not required. That leave without pay probably requires the employee to pay the full cost for health insurance in most companies. I used sick and annual, so I did accrue leave and maintained my health insurance.

Posted by: foamgnome | December 7, 2006 10:02 AM

I found a lay-friendly explanation of health benefit continuation:

"While an employee is on FMLA leave the employer is required to maintain the employee's group health benefits on the same terms as if the employee continued to work. An employee, while on unpaid FMLA leave, needs to make arrangements with the employer to pay the employee's portion of group health benefits premiums.

This requirement includes all group health benefits the employee has prior to the date leave begins. For example, if the employee has family coverage, it must be maintained; if the employee has dental or eye care, it must be maintained; if the employee has coverage for mental health counseling or drug abuse treatment, it must be maintained during periods of FMLA leave.

If benefit plans change or premiums decrease or increase while the employee is on FMLA leave, the employee must be given the opportunity to elect the benefit plan change, and must pay the changed benefit premium.

If for some reason the employee is dropped from coverage of the group health benefit plan while on FMLA leave (the employee may elect not to continue coverage while on unpaid leave, or may fail to make premium co-payments as required) at the time the employee returns to work the employer must restore the group health benefit plan to the employee.

When restoring the group health benefit plan after the employee has taken FMLA leave, the employee may not be required to submit to a physical examination, be excluded for a new pre-existing condition, or be required to undergo a qualifying period.

The employer is not required to maintain a health insurance program the employee has purchased from an independent carrier where the employer's only role is to make payroll deductions for payment of employee's premiums."

Posted by: atb | December 7, 2006 10:07 AM

What a wonderful thing it is to live in a part of the world where parenting is valued and parents can take a year off work to be with family. My tax dollars pay for this benefit for myself and for others and I don't mind it one single bit.

Posted by: happy in utopia | December 7, 2006 10:10 AM

"but the immigrants who tend to make up the majority of immigrant population"

Huh?

Posted by: Anonymous | December 7, 2006 10:20 AM

to happy in utopia:
It would be extra special nice for all that, but perhaps you don't live in a place where many people spend their whole lives trying to game the system for what they can get out of it and never consider the rest of society when they do this.

Posted by: atlmom | December 7, 2006 10:21 AM

While all of you women are lobbying for a continuation of one of the more generous pieces of the free lunch pie the govt. hands out to women, why don't you all throw your considerable support behind the state initatives that grant fit caring and loving fathers equal time with their children after divorce. Children are the true loosers because you want it all.

Posted by: mcewen | December 7, 2006 10:22 AM

Are you just bitter or not paying attention? FMLA is not for women. It is not a government hand out. It does not cost the government a dime to force employers to give you 12 weeks of unpaid leave for family medical needs. Men are entitled to this time as well. Again as atb pointed out they are not required to pay you, pay benefits, or give you accrued leave. It is a freebie. All it does is just forces them to not fire a person. Get a grip, even the childless have parents and do qualify for this.

Posted by: mcewen | December 7, 2006 10:25 AM

"that the government hands out to women"
Why, McEwen? Men don't get sick? Don't have children? Don't have parents? FMLA is for all of us. It is YOUR assumption that only women will use it to take care of loved ones.

Posted by: to mcewen | December 7, 2006 10:26 AM

I made the last post. I meant to say to mcwen.

Posted by: foamgnome | December 7, 2006 10:26 AM

"I happen to agree that we could use some fresh thinking -- paid leave anyone?"

While I'm usually happy to support anything that involves spending government money to help individuals in need, I think this is impractical. The Fed doesn't have the kind of money it would take for even a small portion of FMLA to be funded for paid leave. And, while I think it's short-sighted of them, Americans won't embrace the idea of paying higher taxes to accommodate such a plan.

Furthermore, even if it were possible, a paid-leave FMLA would end up being abused by middle-class mommies to extend their maternity leaves (as implied in Leslie's blog today). Not what it was intended for.

The FMLA could be improved with more flexibility, but paid leave is neither likely nor a good idea.

Posted by: Anonymous | December 7, 2006 10:28 AM

Somebody slap him.

Posted by: Anonymous | December 7, 2006 10:29 AM

To Yo: You misunderstood me. I meant that child-friendly policies benefit us all because children are the future supporters of social security. IF the reproduction rate goes down, the country can't rely on immigrants to support social security.

Another cost of reducing FMLA is that if these parents are fired because their kids get sick, then the cost of their kids' healthcare (such as it is) will end up being borne by taxpayers. Im sure companies and insurance companies would like this because it would reduce their OWN healthcare expenditures if they coculd push sick kids onto the public dollar, but from the taxpayers' point of view it's better to keep those parents earning a living and having health insurance

Posted by: m | December 7, 2006 10:29 AM

With every policy there is the potential for abuse. However the "intermittant" clause of the FMLA is an absolute neccessity for those struggling with chronic illness (their own or that of a family member). A three month leave does not cover all situations. A child with leukemia may be out of the hospital after 4 weeks but still needs to go for treatments, office visits, lab work. All of those "a day here and a day theres" add up. And what about the parent with chronic heart disease that requires care for a "few days" after each hospitalization? I know it may be hard for companies to monitor but the software industry is a marvel at adapting technology to meet these needs. They just need to find the right program. I have used FMLA for both the birth of a child and to spend 6 weeks with my dying Father (in a city 1200 miles from where I live). I shudder to think about the choice I would have had to make without this policy in place.

Posted by: CirclePines | December 7, 2006 10:32 AM

The government should not fund paid leave. There are myriad ways a company could offer benefits to FMLA takers to pay for leave - these are just suggestions and obviously wouldn't work for every company, but I thought instead of saying what WON'T work, I'd suggest a few things that might merit at least consideration.
- Paid leave for elder/child care (or whatever FMLA covers) could be paid for by taking the contributions your company makes to your pension or matching 401K/403B contributions and use those to partially fund it. So you wouldn't make any pension contributions/matching 401K/403B while you were out, but that $ could instead partially fund your leave. You could be paid out for partial salary. You could take any other benefit your company offers (except health care, which you obviously need), and convert it to salary wages for this time. You could start a flexible spending account that you pay into when you start working at a company to put towards the time you'll be out. There are a lot of creative ways to "pay" for paid time off for child/elder/whatever care that don't require the government to fund it.

Posted by: The original just a thought | December 7, 2006 10:35 AM

"It does not cost the government a dime to force employers to give you 12 weeks of unpaid leave for family medical needs"

Technically, not true. There are administrative costs associated with any benefit program the government offers. Think about the additional costs of staff, paperwork, reporting and recording, etc.

Posted by: Anonymous | December 7, 2006 10:37 AM

"FMLA ONLY means you can't get fired and there's literally no other benefit that I can see."

Yeah, but that benefit is HUGE. For someone who needs to be with a really sick child in hospital or with a dying parent, the security of knowing your job will be there is immeasureable.

FMLA was never intended to subsidize leave. It was established to protect vulnerable workers (pretty much all of us) from losing their jobs due to serious family illness.

Why are so many people griping that it doesn't pay them anything???

Posted by: Anonymous | December 7, 2006 10:41 AM

to: the original just a thought

The point of having the government fund leave would be to share the cost "progressively"--i.e., those of us with more money help out, through our taxes, those with less money. For this to make sense, of course, there should be some kind of roof or sliding scale, as with so many other programs: if you make more than X per year, you don't get any help, or the help you get goes down 10% for every 10K you make, or whatever.
The reason to do this is that you and I may be able to save for catastrophic circumstances, but many people who live paycheck to paycheck would face destitution if they were to take an extended unpaid leave to take care of a loved one. In a way it is a matter of simple decency and compassion--a way to make sure people don't just fall through the cracks because of unavoidable events.

Posted by: agingmom | December 7, 2006 10:42 AM

They do not hire additional HR to cover FMLA paperwork. Those HR and administrators would still be working for the government. Not to mention, that is only in the case if your government employee. If you work for company A, the government does not do the paperwork for company A's employees. Again, Company A hired the same amount of employees to cover HR and admin. I don't believe that companies hire people specifically to do the paperwork to cover just FMLA.

Posted by: foamgnome | December 7, 2006 10:43 AM

I have no idea what FMLA covers, but I have no kids and I am waiting to see what I will get from my company to make me equivalent to the breeders. How about 3 months off in the summer to soak in the sun? No? Right, someone has to cover for the breeders when they are off on their FMLA leave.

Posted by: questionauthority | December 7, 2006 10:46 AM

I think the general confusion in these posts are there are two issues here. 1) FMLA as it stantds today-unpaid leave and 2) creating a new FMLA which may include government paid leave. Right now FMLA (unpaid) is not a government benefit plan. It is a law restricting employers from firing a person who uses 12 weeks of unpaid leave for family medical needs. It is not costing anyone money, if the company chooses to keep it totally UNPAID. The additional labor cost (non monetary cost) is assumed by staff currently employed by the employer (HR, admin, support staff, and colleagues who chip in and put in the extra mile) or temps who get paid what they would have been paying the employee on FMLA. This is not a government benefit. The government does NOT pay the employee or the company for money spent during FML.

Posted by: foamgnome | December 7, 2006 10:47 AM

"why don't you all throw your considerable support behind the state initatives that grant fit caring and loving fathers equal time with their children after divorce"

mcewen,

Your posts always seem to deal with unfairness in child custody issues. Clearly, you have a particular agenda. Why don't you start a blog for fit, caring, and loving fathers who want equal time with their kids after divorce?

Posted by: Anonymous | December 7, 2006 10:47 AM

Questionauthority: Again FMLA is not for parents only. It is most used for personal illness. Are you always assuming you won't be sick or your spouse will not get sick? Are you an orphan? You could use it for your parents.

Posted by: foamgnome | December 7, 2006 10:50 AM

At the federal agency I work at, an employee cannot just take all of her sick leave for maternity leave and then FMLA. She can use her sick leave for when she requires medical treatment for herself. In the case of the birth of a child, that is medical needs before and during the birth and then 6 weeks for the recovery (8 if she has have a c-section). After that, she is allowed to use sick leave (or annual leave) during her FMLA. I think that an employer could require that the recovery time be part of the FMLA, but that is probably discretionary. At my agency, they are pretty flexible about taking time off in connection with the birth or adoption of a child. Under certain circumstances that could be 5 months of sick leave and then whatever annual leave has been accumulated as well.

Several women I know have taken up to a year off, a mix of paid and unpaid, and come back to their jobs. I was able to take 9 1/2 months off paid under this system. My boss did not have to hold my exact job, but she did, and I would have stuck it out with her for years to pay her back for this kindness. She has since left for a different position in the agency, but she still has my complete loyalty.

Also, men can take up to 12 weeks of FMLA during the first year after a baby is born or adopted. This can be paid time off by using either sick or vacation leave. It does not have to be sequential, but it does need to be approved by the employee's supervisor. Men regularly take paternity leave with no negative consequneces at my agency.

Also, every year, federal workers are allowed 2 1/2 weeks (I think that is the limit) of time during which they can use sick leave to care for a sick family member. That is every calendar year. I think that is called the Family Care and Bereavement act and it predates FMLA. Without this, federal employees would be unable to use sick leave to cover doctors appts, etc. after a baby's first year.

Posted by: A U Park Mom | December 7, 2006 10:52 AM

Technically, FMLA does have a 'soft' cost to a company in lost continuity on it's projects or work. There may be increased training to cover the job of the person who left, or the increase in dissatisfaction of the workers who may have to temporarily do the job of the guy who is out with his newborn (evidenced by the single complainers seen so often on this board).

I'm not saying FMLA is bad, and I think big corporations are heartless just as much as the next guy does. I'm just saying it's dishonest to imply that FMLA has no impact (financial and other) to the employer.

Posted by: Anonymous | December 7, 2006 10:53 AM

Thank you for posting this story. Scary indeed.

I was upset that neither my husband or I had paid parental leave...but we are in a position to be able to take unpaid leave (he took 3 and I took 12 weeks). But what about those many low-wage earners who have NO leave at all, much less paid paternity leave?

I hope we can only go forward and not backwards (and I think family leave should be as broad as possible, to include caring for family members...I don't deny that it's a benefit that childless people might resent slightly).

Posted by: VaMom2 | December 7, 2006 10:55 AM

Of course, the feds have plenty of money to pay new parents without raising taxes a dime. Take out the silly programs which they fund now, cut spending to a reasonable level, and stop spending money on things that the feds have no right spending money on (and fix the tax code while you're at it - have it be fair for everyone, not just to those who can hire lobbyists for $300k a pop). Then we could pay parents for a leave - however, since everyone thinks each and every govt program is untouchable, that won't happen.

Posted by: atlmom | December 7, 2006 10:57 AM

Alex mom above said "FMLA allows up to 12 weeks of unpaid leave for employees who have worked there a year and have medical emergencies in their families (direct parent or child). It applies to companies with over 50 employees."

Would childbirth be considered an emergency?

Posted by: SS MD | December 7, 2006 10:58 AM

"I'm not saying FMLA is bad, and I think big corporations are heartless just as much as the next guy does. I'm just saying it's dishonest to imply that FMLA has no impact (financial and other) to the employer."

Hear, hear! Folks who are in positions where they essentially are fungible, e.g., anyone with similar skills could answer the phone and complete the task, can use FMLA with relatively minimal impact on theiremployer. In the alternative, folks who have institutional and client-specific knowledge and/or are the only ones on their teams with a particular skill-set cannot drop out of the workplace for 4 - 12 weeks without being replaced by their employer. If I said I needed to leave next week for 12 weeks, my employer would "let" me, but the job I now have would be gone by the time I get back because the job can't be left undone for that period of time and no one else on my team has my skill set. When I get back, there's no pile of work not being done that can be handed to me, and the new guy is doing my old job. How long do you expect my employer to retain me with no productive use for my skills?

The practical reality of FMLA is it works really, really well to provide a safety net for many workers, but it's not the panacea some seem to think. and it does have costs to the employer who must find a way to get that job done in another fashion. Some on this board suggest temps can do all jobs. I disagree. Temps are fine for admin and certain other jobs, but they can't step in for all of us.

Posted by: Anonymous | December 7, 2006 11:02 AM

"I'm not saying FMLA is bad, and I think big corporations are heartless just as much as the next guy does. I'm just saying it's dishonest to imply that FMLA has no impact (financial and other) to the employer."

Hear, hear! Folks who are in positions where they essentially are fungible, e.g., anyone with similar skills could answer the phone and complete the task, can use FMLA with relatively minimal impact on theiremployer. In the alternative, folks who have institutional and client-specific knowledge and/or are the only ones on their teams with a particular skill-set cannot drop out of the workplace for 4 - 12 weeks without being replaced by their employer. If I said I needed to leave next week for 12 weeks, my employer would "let" me, but the job I now have would be gone by the time I get back because the job can't be left undone for that period of time and no one else on my team has my skill set. When I get back, there's no pile of work not being done that can be handed to me, and the new guy is doing my old job. How long do you expect my employer to retain me with no productive use for my skills?

The practical reality of FMLA is it works really, really well to provide a safety net for many workers, but it's not the panacea some seem to think. and it does have costs to the employer who must find a way to get that job done in another fashion. Some on this board suggest temps can do all jobs. I disagree. Temps are fine for admin and certain other jobs, but they can't step in for all of us.

Posted by: Anonymous | December 7, 2006 11:02 AM

FMLA does not mean they hold YOUR job for you, it means they have to give you *A* job at the same level. They can, and do, fill jobs of those on FMLA, and give the returning employee a different situation, same pay. I have a friend who took FMLA and was stunned to find that her old job vanished while she was out,but the company was within its rights as they gave her something else (which she did not like nearly as much.)

Posted by: December | December 7, 2006 11:05 AM

"Of course, the feds have plenty of money to pay new parents without raising taxes a dime. Take out the silly programs which they fund now, cut spending to a reasonable level, and stop spending money on things that the feds have no right spending money on"

For purposes of clarification, would you please explain:

1) What are the "silly programs" the government could stop funding?

2) What is the "reasonable level" to which government spending could be cut?

3) What does the government spend money on that it has no right to spend money on?

And for my own edification, could you give a good, reasoned argument for why my tax dollars should go toward funding leave for new parents?

Posted by: Yougottabekidding | December 7, 2006 11:05 AM

I am not saying it does not have an impact. And there are not soft costs to FMLA. But in all seriousness, it would cost them a lot more, if every time a person had a kid and quit working just to be home for 12 weeks. Or god forbid, 6 weeks with a dying parent. They would have to go out retrain and hire a whole new individual. That alone in a lot of jobs would take them 6-12 weeks to do anyway. Temps are usually not that much work to hire and generally are not trained all that well. Most of the soft costs are absorbed by their current staff. In a lot of cases, like my job, the work simply just doesn't get done while I was away. But research is sort of different then most jobs.

Posted by: foamgnome | December 7, 2006 11:07 AM

to happy in utopia:
It would be extra special nice for all that, but perhaps you don't live in a place where many people spend their whole lives trying to game the system for what they can get out of it and never consider the rest of society when they do this.

Posted by: atlmom | December 7, 2006 10:21 AM
The actions of a few should not punish the many and in my part of the world, they don't. How exhausting it must be to spend all of that time judging other's choices.

I have tried to be open minded in reading this blog (as I am somewhat new to it) but I just don't understand this attitude (that seems to permeate this blog) that parenting is not valued, is demeaning, and is not nearly as important as working and owning that nice car/house/whatever. It truly is a mystery to me that more value is not placed on children - who, by the way, grow up and become adults. Perhaps this attitude explains the social decay that is so prevalent in some parts of the world.

And with that, I am off to work so I can pay higher taxes so a new parent can stay home with their child and focus on raising a happy, healthy child who may grow up to be a rocket scientist or just a great person. It sure is "extra special nice"!

Posted by: happy in utopia | December 7, 2006 11:07 AM

FMLA does not mean they hold YOUR job for you, it means they have to give you *A* job at the same level. They can, and do, fill jobs of those on FMLA, and give the returning employee a different situation, same pay. I have a friend who took FMLA and was stunned to find that her old job vanished while she was out,but the company was within its rights as they gave her something else (which she did not like nearly as much.)


Don't orgs do that all the time, even when your not on FML. I thought they called it reorganization!

Posted by: foamgone | December 7, 2006 11:11 AM

"paid leave anyone?" . . . how about you just get a paycheck and never have to work again? We -- the government -- pays you to have children and be a parent. Those of us without children get taxed to let you stay home because we are ever so grateful. As with all government benefit questions, the one to answer is "Who pays?" and "Who benefits?" -- and is the equation equitable to all concerned.

Posted by: Colorado Kool Aid | December 7, 2006 11:17 AM

When it comes to childcare, FMLA does apply to both mothers and fathers, except when they work for the same company. For example, my husband and I work for the same non-gov't company, but only one of us is eligible for FMLA when our next child is born.

I can't point you to the exact text, but it is in there somewhere.

Posted by: workingmom | December 7, 2006 11:18 AM

"Don't orgs do that all the time, even when your not on FML. I thought they called it reorganization!"

Is this TIC, Foamgnome? No, most orgs don't reorganize at the drop of a hat. Many of us would be circulating our resumes in a heartbeat if we sensed that a reorg was in the offing, and it's the last time we'd select to take leave of any sort. If one takes leave from a stable entity that's not "in play", one may not anticipate that the job and organizational structure might change over a 12 week period.

Posted by: Anonymous | December 7, 2006 11:18 AM

Paid leave for elder/child care (or whatever FMLA covers) could be paid for by taking the contributions your company makes to your pension or matching 401K/403B contributions and use those to partially fund it.
---------

This is currently true and a friend emptied out her 401k to cover time she was in chemo. She passed away after about a year, so it was not a bad idea to use the 401k money, even after a sizable tax bite.

Posted by: Bethesdan | December 7, 2006 11:20 AM

to Colorado Kool Aid: you're either not listening, don't want to hear, under 30, or some combination of the above. Most people who take advantage of FMLA leave do it to care for aging/ill parents, not to take an unpaid maternity/paternity leave.

It's unpaid leave, so given most individual's rate of savings, the vast majority of us can't take advantage of it for any period of time approaching 12 weeks. This isn't a parent benefit. It's an all-person with living parents benefit.

Posted by: Anonymous | December 7, 2006 11:22 AM

To 11:18: It depends on where you work. My friend is a programmer in private industry. Her division has reorged 6 times in 4 years. She calls it same Sh** different cubicle. DH works for DoD, in four years, his branch has reorged 3 times. So no, not every 12 weeks. But the point is, they can org at any point and give you a less then thrilling assignment, a less then thrilling supervisor etc... My section is reorging starting January 1. Life happens.

Posted by: foamgnome | December 7, 2006 11:24 AM

"paid leave anyone?" . . . how about you just get a paycheck and never have to work again? We -- the government -- pays you to have children and be a parent. Those of us without children get taxed to let you stay home because we are ever so grateful. As with all government benefit questions, the one to answer is "Who pays?" and "Who benefits?" -- and is the equation equitable to all concerned.
----------

This is exactly why my neighbors moved back to Denmark- to live in such a society. For the most part it works ok for them. They pay less taxes than we do and get more social services than we do, because they don't have the military. I was one of those people who always thought Europeans paid a lot in taxes, but my friends claim it's like 25%, much less than the US.

Posted by: Anonymous | December 7, 2006 11:24 AM

KMLA does not run on ESP. Forms have to be filled out and submitted, managers need to approve/disapprove. New employees need to be interviewed.

Unless you have mind readers in your organization, there are costs to administrating the act.

Posted by: Anonymous | December 7, 2006 11:26 AM

I will be sending my comments to the DOL, but I just wanted to give everyone a glimpse at the group I manage. Several of us have used FMLA this year and I am the only one who did because of the birth of a child.

One childless woman had 3 surgeries this year and was out a total of 12 weeks (same as my total for maternity leave). Another has a child but was out due to her husband's surgery and life-threatening complications that ensued (she was out a total of 6 or 7 weeks). I had my daughter and took 6 weeks of leave (paid by using all my accrued vacation and sick leave added into 4 weeks of 2/3 pay from short-term disability insurance) and then worked part time, some from home for the next 12 weeks. This was a good deal for my employer as I had recently taken over a group that had a huge amount of work to complete and had just had a large staffing turnover. My part-time was supposed to be 20 hours per week but usually turned out around 30-32 hours.

Because the contract needed me badly, I'm guessing we would have worked this out anyway, but it was good to have a framework and rules to base our agreement on. Having more paid time would have been very helpful as I've had no sick leave to work with since then. Luckily my daughter was healthy until this past week (and is better again, thank goodness!) My husband shouldered a lot of her time at home and I did a lot of late-night work from home. We're exhausted.

Posted by: MaryB | December 7, 2006 11:31 AM

They also don't have the population we do. european birth rates are dropping, so you have more people working and less utilizing the beneft. This is sort of how Social Security oringally worked. Most people died before they became eligible for benefits. Once people started living longer and drawing benefits ....

plus, it's my understanding that there's a different attitude to work in Europe.

Posted by: to anon at 11:24 | December 7, 2006 11:31 AM

11:26: Those admin people and managers would be working anyway. Regardless of FMLA. There are soft costs but not a lot of financial costs included in FMLA. They did not have to hire additional staff just to work through the paperwork required for FMLA. Why is this hard for people to understand? Does FMLA have an impact to businesses? Sure. Does it require a lot more $$ to implent? No. Why because their original staff just keeps working harder. And temps get paid less because of zero over head costs.

Posted by: foamgnome | December 7, 2006 11:31 AM

To: Colorado Kool Aid:

OK, one more time. FMLA is NOT ONLY for new parents--indeed not even primarily for new parents. If YOU get sick and need to be out for 3 monts, FMLA says you don't lose your job. If your mom/dad gets sick and you go to assist them, you don't lose your job.

What is so hard to understand about this? All FMLA does is guarantee that you don't have to quit your job when your close family is struck by illness or death. We ALL benefit from it, parents and non-parents alike.

Posted by: aging mom | December 7, 2006 11:32 AM

This is exactly why my neighbors moved back to Denmark- to live in such a society. For the most part it works ok for them. They pay less taxes than we do and get more social services than we do, because they don't have the military. I was one of those people who always thought Europeans paid a lot in taxes, but my friends claim it's like 25%, much less than the US.

Who will save Denmark if they are attacked?

Posted by: Anonymous | December 7, 2006 11:36 AM

"how about you just get a paycheck and never have to work again?"

Some women do this - they're called SAHMs....

Posted by: Anonymous | December 7, 2006 11:37 AM

I also think most of the public understands that the largest employer in the US, is the federal government, followed by small busineses. The second largest employer is small business as a group. They are not required to abide by FMLA. Most businesses in the US have very few employee (less then 5). Large companies (companies with over 50 employees) is the minority of businesses. Not to mention, small companies do not fall into FMLA. They are not require to give their employees the 12 weeks unpaid leave due to medical necessity. Even in large companies, additional staff is not rarely a cost deficit to the large company. Because if additional employees are hired, they are hired as temps. Temps do not have over head costs. Therefore the company is not paying you, not paying you benefits, and hiring a temp. More likely, a temp is never hired to begin with and the current workers step up to the plate.

Posted by: foamgnome | December 7, 2006 11:39 AM

1) What are the "silly programs" the government could stop funding?

Benefits for people that are not citizens.

Posted by: Anonymous | December 7, 2006 11:43 AM

SS MD: No, pregnancy is not an "emergency." You're required to give 30 days notice to take FML time, provided you can. So, 30 days before your due date, though the baby could come at 30 weeks and it would be an emergency. And obviously some surgeries won't be scheduled that far out, yet wouldn't be considered "emergencies."

Posted by: atb | December 7, 2006 11:47 AM

I fail to see any wrong with the FMLA.

*You don't get paid*
*You must pay your insurance premiums*
*Your job is "theorectically" protected*

Companies always look at bottom line, folks. If you are out on FML and it is not beneficial for them to keep you, they can lay you off or fire you.

For all the posters against worker protections such as FMLA (as weak as it is) may you have a critically ill child or family member so you can understand how SOL you are in this society without any type of social safety net. Although, I bet most of the posters against this have a spouse who goes to bat for them and carries the added burden.

Posted by: WTF | December 7, 2006 11:53 AM

""how about you just get a paycheck and never have to work again?"

Some women do this - they're called SAHMs...."

Wait, hold on a second, how did I miss out on my free SAHM paycheck for that first year or so? Darn! Just like I was too late for my box of free money last week...

Posted by: Megan | December 7, 2006 11:54 AM

I was happy that FML was available after the birth of my two children, although I suspect my employer would probably have granted me unpaid time off during that period any way.

But I was ecstatic to discover that I could use FML for intermittent time off. My son was born with a primary immune disorder (think Boy in a Bubble, although less serious) and was/is sick constantly with everything from regular colds to pneumonia to strange things like infected hair follicles. It took three years to get a diagnosis and start treatment that helps, although it doesn't eliminate the illnesses entirely. For those first three years of near constant infections and illnesses, balancing work and the need to care for him was nearly impossible. I was nearing the end of my available sick leave and my employer told me I'd either have to hire a nanny to stay home with my sick child or look for different employment.

Fortunately I had the sense to talk to my sister who worked in HR for another company. She told me about being able to use FML as needed to care for a chronically ill family member--I had always thought it was only available in blocks of time. With proper documentation from my son's doctors and the help of my employer's benefits office, I was able to use unpaid time off to care for my son as needed without having to worry that I would be fired.

The only thing I'd change about the system is education of employers--instead of threatening my job, my boss should have directed me to our benefits office for assistance.

Posted by: Sarah | December 7, 2006 11:55 AM

yeah, I missed out on mine too. Brian, do you get a SAHD check?

Posted by: scarry | December 7, 2006 11:59 AM

I think my SAHM pay check got lost in the mail.

Posted by: foamgnome | December 7, 2006 12:03 PM

http://www.theamericanresistance.com/issues/health_care.html

I agree with the other poster on this issue.

I don't think that it is hateful to expect that my taxes be used for people who are citizens of this country. We have old people here who can't afford to eat and pay for medicine.

Where is your bleeding heart for them? Having a different opinion doesn't make someone a moron either.

Posted by: Anonymous | December 7, 2006 12:10 PM

AND I didn't win Powerball AGAIN last night. Crapweasels!

Posted by: Megan | December 7, 2006 12:12 PM

Sorry, Megan, you're not allowed to win the Powerball -- that's for ME! :-)

(really like the crapweasels, though -- may need to steal that)

Posted by: Laura | December 7, 2006 12:19 PM

The American Resistance website doesn't site where they obtain their stats. So I have no idea if it is real data. As we know about the Internet, anyone can put up a website and make up data without proper citations. So I have some questions about the validity of its info.

Second, as someone who grew up in Arizona. The national hysteria generated by Lou Dobbs et al over illegal immigration is just insipid. As for the old people of this country, I do care about them. Aren't they enjoying the lovely prescription deal that Medicaid/Medicare offers?! Aren't we paying for that?!

I don't think having a different opinion is bad. I just wish you could discuss your opinion in the proper forum. I am sure there are plenty of "white power" websites whose posters share your hatred of immigrants.

Posted by: former 'Zonie | December 7, 2006 12:34 PM

I don't think the point of the FMLA was to stretch out maternity/paternity leave. I think the underlying goal is to protect the jobs of people who have to take leave for personal or family emergencies, such as caring for a sick child or parent, or being seriously ill.

Posted by: Anonymous | December 7, 2006 12:35 PM

My boss took 12 weeks FMLA to care for a spouse after an operation. This made her totally unavailable to her workers. I was trying to get approval for a promised alternate work week so I could schedule visits with my doctor since I was beginning to suffer from depression. I could not even get approval for vacation time since she did not answer emails. So I got fired for taking too much sick time. FMLA takes care of family but there is nothing to help the employee.

Posted by: Anonymous | December 7, 2006 12:47 PM

Laura, LOL - No way! Get in line -Powerball is mine! One of my best friends came up with crapweasels, I'm very fond of it.

Posted by: Megan | December 7, 2006 12:48 PM

to 12:47, that's a terrible story. Based on what I've read about FMLA, I would think that you would also have been entitled to take FMLA leave for your extra doctors appointments - it provides for leave for personal or family illnesses, and that includes mental illness.

I agree wholeheartedly with the poster above who said employers need to be educated on this issue - too many do not understand this law and provide incorrect or incomplete information on your rights. Unfortunately, this means its up to us as employees to know our rights and enforce them, but that can be really difficult when you are in the midst of dealing with an illness.

Posted by: Megan | December 7, 2006 12:52 PM


I am sure there are an equal number of sites out there for you as well where you can discuss this issue. You are just as racist, if not more, than the person who posted the comment.

You should also replace the word "undocumented" with "illegal" and stop using propaganda to call someone else names who said nothing but the truth.

Posted by: to former 'Zonie | December 7, 2006 1:02 PM

Check out Section 5 of OPM Form 71 "Request for Leave or Approved Absence"
It mentions annual leave, sick leave, or leave without pay...used under the FMLA.

Posted by: Anonymous | December 7, 2006 1:06 PM

I am sure there are an equal number of sites out there for you as well where you can discuss this issue. You are just as racist, if not more, than the person who posted the comment.

You should also replace the word "undocumented" with "illegal" and stop using propaganda to call someone else names who said nothing but the truth.

Posted by: to former 'Zonie | December 7, 2006 01:02 PM

***
How does any of this relate to FMLA?!

Oh and "Truth" is subjective...

Posted by: former 'Zonie | December 7, 2006 1:09 PM

"I guess that's up to the employers, but do we really want to decrease the child production rate here: it's at replacement level, a good place to be. I guess if it decreased, we could replace the population with immigrants but it seems to me that this is not really what the country wants"

Posted by: Anonymous | December 7, 2006 1:11 PM

12:47 PM wrote:
FMLA takes care of family but there is nothing to help the employee.

This is absolutely wrong. FMLA allows employees to take time off for their own serious health condition, or to care for a family member with a serious health condition. I'm sorry this happened to you, the HR department should have had someone to deal with such issues in your supervisor's absence.

One way that FMLA could be funded would be by requiring employers to establish leave banks. Employees could voluntarily donate leave to the leave bank, but more importantly, employers could be required to credit leave forfeitures (from people who are in a "use or lose" situation) to the leave bank.

This is what our union negotiated with my company and it literally saved my daughter's life after she was diagnosed with an aggressive form of pediatric cancer that required her to have high dose chemo, surgery, radiation, and a bone marrow transplant all in the space of a year. Most of that time she was hospitalized and the few times she was not, we were either in the cancer clinic for most of the day, or she was too immune suppressed to go to preschool/daycare. Without our union, I would have lost my job and the health coverage we desperately needed, and my child likely would have died. Every day I am grateful for the creative approach my union and my co-workers (who made directed leave donations) took to dealing with my family's crisis.

And to Happy in Utopia, the reason you are picking up on the attitude "that parenting is not valued, is demeaning, and is not nearly as important as working and owning that nice car/house/whatever" on this blog is because that attitude permeates our society. Very sad.

Posted by: Anonymous | December 7, 2006 1:15 PM

I'm all in favor of FMLA, I think it's a great idea. However, half of my employees are on it. One girl milked it for three years before we could finally axe her. My company goes way overboard complying with any of this stuff. They offer it to anyone who has any chance to be eligilbe for it, regardless of the situation. We don't wait for people to ask, we offer it. Some of the people that it's offered to clearly do not have a "covered condition" but not my call here, so I just go with the program. My suspicion here based on the Bush administration's previous attempts to curtail anything that is costing companies money or giving something to employees is that they're full of it and they're going to try to gut the program. Typical. All of the people they consider to be worthy human beings are rich enough that they will never need anything like this, so don't think anyone should.

Posted by: glen | December 7, 2006 1:22 PM

to 1:15 the key is Unions not FMLA. without a union companies can fire anyone. If my company had a union I probably would not have been fired for taking sick leave.

Posted by: Anonymous | December 7, 2006 1:24 PM

wtf, if your company normally pays your insurance premiums, they should continue to do so under FMLA. You can get paid, but only if you have sufficient leave accrued to cover the time off. I don't believe an employer can fire someone for using FMLA, only for abusing it. Anyone who is on FMLA and gets fired without cause should sue. I know that's not easy, esp if you're ill or caring for someone tht is ill, but that's the way to get what you've got coming.

Posted by: glen | December 7, 2006 1:36 PM

"to 1:15 the key is Unions not FMLA. without a union companies can fire anyone. If my company had a union I probably would not have been fired for taking sick leave."

But had you known about your FMLA rights and requested leave under those the statute, you could not have been fired either. The FMLA could have helped you had you been known about and been able to enforce your rights.

Posted by: Megan | December 7, 2006 1:37 PM

I can't help but think about that woman in Oregon who posted a few days ago who was fired for taking two days to be with her injured Iraqi veteran son. How could that possibly be legal under any circumstances, and especially with FMLA? Her company certainly has more than 50 employees.

Posted by: Anonymous | December 7, 2006 1:38 PM

Again, if the Oregon women knew of her rights and was willing to sue, she probably would have won.

Posted by: foamgnome | December 7, 2006 1:41 PM

the oregon woman may not have requested FMLA leave. you do have to request it--it's not automatic.

Posted by: aging mom | December 7, 2006 1:48 PM

My company had no problem giving me the 16 weeks (I work in DC) of FMLA leave. Even without a union, you should have been protected from your company's sick leave policy. Your HR dept. dropped the ball in a major way in handling both your situation and your supervisor's.

One of my points was that 16 weeks (12 weeks most places) is a drop in the bucket for a catastrophic illness. I have a friend whose son has the same disease as my daughter. The day he was diagnosed, the docs told them she and her husband needed to decide which one would give up their job. Most two-earner families couldn't take that kind of a hit to their "normal" finances, let alone when they are facing thousands in hospital bills and associated medical costs.

Catastrophic illness needs to be addressed in this country, as it is one of the top three reasons people declare bankruptcy (or at least did, before Congress fixed things up for their banking industry pals).

Also, I would be interested in hearing what people think of the leave bank idea as a funding mechanism for non-union employers. People in my office gladly donate, in addition to the leave bank being funded by forfeitures. It seems like a win/win, because employers are already obligated to pay the accrued leave benefits.

Posted by: Anonymous | December 7, 2006 1:52 PM

well, assuming that a lawsuit is the solution to every problem on god's green earth, some lawyer has to be willing to take on the claim on a contingency basis, and the just-fired-employee won't have her job back until the 2+ years it takes for her claim to work its way through the legal system. In the meantime, her mortgage becomes due 24+ times and life goes on. Methinks she has bigger things going on in her life, like her son, and finding a new job, to spend it on a lawsuit. and thank God.

Posted by: to foamgnome | December 7, 2006 1:54 PM

I just wonder if there is something more to her story? What do you guys think? I mean did a manager let her go, if so, can't she talk to the owner.

I lived around LDS people for five years in Utah and above all else, they are family oriented and they fo out of their way to help people.(I know it's a generalization, but her situation just seems so over the top and heartless.)

I just wonder if what happened to her was the result of a misunderstanding or a stupid mistake made by one person.

Posted by: scarry | December 7, 2006 1:55 PM

to 1:54: I did not say it would be easy to sue or suggest one should sue. My point is that it is not automatically granted or automatically enforced. Sometimes it takes the few brave people, who do sue, to make universal enforceable change for all. There are organizations that will do legal work probono in cases that deal with such injustices. Again, is the answer to let employers break the law?

Posted by: foamgnome | December 7, 2006 2:00 PM

no, the answer is to be cognizant of the fact that having a viable legal claim doesn't get you compensation for some period of time so it's not a solution for persons operating paycheck to paycheck. Sure, if she meets the Legal Aid guidelines or if she gets some other organization interested, and she gets qualified counsel, the world might be a better place. The most effective penalty, however, for this employer is the bad PR that comes from good employees not wanting to work there any more, good prospective employees not wanting to work there in the future, and for everyone to not purchase their RVs. The free market system plus a free press are far more effective tools than one lousy lawsuit.

Posted by: to foamgnome | December 7, 2006 2:04 PM

did the Oregon woman actually name her company?

Posted by: aging mom | December 7, 2006 2:07 PM

To 2:04: The original question was how could this happen? Not what was the best way to make the law enforcable. It happened because she was not aware of her rights and did not choose to take action against the employer. Statistically speaking, PR campaigns are as effective for across aboard employment discrimination as costly high profile law suits. Again, if she goes to the one of the pro bono legal aid agencies, they tend to take case that have high profile ability. It is the same thing that you are getting at. For the legal aid agency, the idea is NOT the paid compensation as much as the publicity surrounding the case.

Posted by: foamgnome | December 7, 2006 2:08 PM

The woman with the son returning from Iraq:

Did she go to the press with the story?
Did she go to her Senators & House Representatives?

There seems to be something missing from the story.

Posted by: Anonymous | December 7, 2006 2:08 PM

No one was saying if you sue the employer, you will instantenously get your job back and your pay restored in the time you may need it.

Posted by: foamgnome | December 7, 2006 2:09 PM

Did she go to her Senators & House Representatives?

I don't see what they could do about it?

Posted by: scarry | December 7, 2006 2:11 PM

another poster identified the company as Monaco Coach corporation, manufacturer of luxury recreational vehicles.

what we don't know is whether she notified her employer that she was going to miss a shift or two, why she was going to miss a shift or two, whether she applied for FMLA and was denied, or didn't apply at all. we also don't know any other facts about this employee's performance, etc., although that should not be relevant.

Posted by: to aging mom | December 7, 2006 2:11 PM

"...the just-fired-employee won't have her job back until the 2+ years it takes for her claim to work its way through the legal system. In the meantime, her mortgage becomes due 24+ times and life goes on."

The claim would include lost wages, which is the only reason the firm would take it on contingency...

Lawyers get bashed a lot and it's unfortunate in some cases because sometimes the ambulance-chaser working on contingency is the only person who will stand up for the little guy.

Posted by: Anonymous | December 7, 2006 2:12 PM

Given the sensitivity of this particular case, injured veteran, her senator and a well devised PR campaign probably would have shamed the company into getting her job back. If this really played out as she said it did, I would be scared to go back to a job that made me shame them into giving me my job back. But it would have been fairly effective due to the sensitive nature of this case. I think, especially the pro war Senators, would be forced to make a public statement about this particular case. In short, the women did not seem to be aware of her rights, her employer did not seem to be aware of her rights and the employer did not see the danger that a law suit or negative PR campaign could do to their business.

Posted by: foamgnome | December 7, 2006 2:14 PM

I see your point about her senator, but if they did that for her, they would always be in front of the TV for someone.

Posted by: scarry | December 7, 2006 2:16 PM

Scarry, I think they have PR people that would do that. No, in this given case, I don't think this happens to every Veterans mother or fathers. It would only take one time for people to wake up to this situation. If it wasn't an injured Iraqi veterans parent, I think the senator could care less. But like the anonymous poster said, all they would really need to do is call up the local TV station. It would really make them look bad.

Posted by: foamgnome | December 7, 2006 2:21 PM

Did she go to her Senators & House Representatives?

I don't see what they could do about it?
-------------

They have stopped such situations in the past, why not now?

Posted by: Anonymous | December 7, 2006 2:23 PM

Yeah, I see what you are getting at, but I wish we had more information on her situation.

Posted by: scarry | December 7, 2006 2:24 PM

Her story is at least as compelling as Terri Schiavo, but I guess we don't have Frist and Santorum to kick around anymore (thank god).

Posted by: Anonymous | December 7, 2006 2:33 PM

Hey 11:37 "how about you just get a paycheck and never have to work again?"

Some women do this - they're called SAHMs....

Sorry I missed your post earlier. I was reading the paper, drinking coffee and watching Ellen in short enjoying my day. I'll think of you slogging home on 395 while I enjoy a nice meal with my family. So sorry you are so hinered by anyone happy.

Posted by: Anonymous | December 7, 2006 2:33 PM

Did she go to her Senators & House Representatives?

I don't see what they could do about it?
-------------

They have stopped such situations in the past, why not now?

I geuss I just didn't see why her senator could get her job back? I don't think just because you are a senator you should be able to tell a company that they have to give someone their job back. Like I said before, we don't know all the details.

Posted by: scarry | December 7, 2006 2:33 PM

What's "hinered"?

Posted by: Anonymous | December 7, 2006 2:41 PM

"hindered" perhaps

Posted by: aging mom | December 7, 2006 2:46 PM

It is SAHM slang. LOL

Posted by: Anonymous | December 7, 2006 2:47 PM

"Sorry I missed your post earlier. I was reading the paper, drinking coffee and watching Ellen in short enjoying my day. I'll think of you slogging home on 395 while I enjoy a nice meal with my family. So sorry you are so hinered by anyone happy."

Really, all you've done is rub salt in the wounds of people who can't afford to sit home and watch Ellen, or better yet, stay home and spend quality time with their children. How very compassionate of you. I bet your children are just LOVELY.

Posted by: atb | December 7, 2006 2:49 PM

Hey 11:37 "how about you just get a paycheck and never have to work again?"

Some women do this - they're called SAHMs....

She was responding to a rude comment.

Posted by: Anonymous | December 7, 2006 3:04 PM

"MEOW!"

Posted by: Anonymous | December 7, 2006 3:06 PM

"Really, all you've done is rub salt in the wounds of people who can't afford to sit home and watch Ellen, or better yet, stay home and spend quality time with their children. How very compassionate of you. I bet your children are just LOVELY."

Could be she's paid a real price for those luxuries - such as a smaller house, a cheaper, older car (or fewer cars in the household), fewer consumer electronics in the house, less dining out, fewer (or less expensive) vacations, etc.

Yes, many families (if not most, in this area) need two incomes. Many others cut their expectations back and manage on one, because they are convinced it's best for the kids and the family as a whole. The fact that stepping out of the workplace rat race has some benefits of its own is just gravy.

Posted by: Anonymous | December 7, 2006 3:09 PM

Scarry, it is isn't that the senator could call the company up and get the job back. They can influence the media and drive a nasty PR campaign against the company. It gives a little more clout to their PR campaign when a high profile person back you up. Again look at Terri Shiavo. It isn't that the Senator really cares about enforcing FMLA, it is a way to publicize the war effort.

Posted by: foamgnome | December 7, 2006 3:11 PM

"There has to be some sort of negative to FMLA. As nasty as corporations are, I would think they would find some way to punish you for using the system, despite the fact that it's protected by law. I work for the government, and they don't even blink when you mention FMLA. OF COURSE you'll use it with the birth of a child. Now, I don't know how they feel about a FATHER using it. More double standards..."

We need to be a bit realistic here. Of course the FLMA right is protected by law. On the other hand, if you take time off of work - whether paid or unpaid, justified or not - it will have consequences. Some could be good - such as avoiding burnout and coming back revitalized. Others can be bad - such as losing touch with what's going on, letting business contacts get stale, failing to meet your annual sales or billing quotas, and your boss finding that whoever covered for you did a better, more efficient job.

None of that - good or bad - is your employer's responsibility. But it can happen - and it can, in the absence of any retaliation whatsoever, affect your work life after you come back from leave.

Posted by: Anonymous | December 7, 2006 3:17 PM

I see what you are saying about the senator maybe I should write my parent's senator because the town they live in doesn't have clean water. I was going to talk to a lawyer about it but my mom is afraid of what some people in the town will do. It's really bad and off topic.

Posted by: scarry | December 7, 2006 3:23 PM

Please. No one needs to tell me how to scrape by in this town. You can do all of those things and still have to work. I think it's great when someone can stay at home with their kids, but that was beyond ugly. It went into rub-it-in-you-face snarkiness. Especially when we are talking about how taking 12 weeks unpaid is almost impossible for many people here.

Posted by: atb | December 7, 2006 3:32 PM

this is the link to the Southern Environmental Law Center.

http://www.southernenvironment.org/index.htm

if your parents don't live in one of the states in which SELC works, I'm sure they can give you a referral to a pro bono law school or other program.

Posted by: to scarry | December 7, 2006 3:33 PM

scarry, even try the congressperson first--they should be most concerned about local issues like that

Posted by: Anonymous | December 7, 2006 3:33 PM

Ok, maybe I am naive, but I thought the SAHM who talked about watching Ellen etc. was actually being sarcastic.

No? She was serious?

Posted by: to atb and others | December 7, 2006 3:38 PM

Thanks, I wish they would let me do something about it. I have a feeling someone will eventually file a law suit against them. My parents drink bottled water, but everyone can't afford it. It is realy sad.

Posted by: scarry | December 7, 2006 3:42 PM

"You can do all of those things and still have to work."

Yes - that's true. On the other hand, sometimes doing all those things will allow you to stay home. I live in MoCo Maryland, and have managed to do it for the last 11 years. Ours is not the only family on our street that has managed to do this (including the one next door, where the dad's staying home). For us, it took buying a house that's almost as old as I am (and I'm NOT gonna admit just how old that is), hubby taking a killer commute every day, being too cheap to pay for cable TV, and keeping cars until they die at something north of 150,000 miles. But we've managed.

To be fair - not everyone is in a position to pull it off. But more do than you might think. And there is a price to be paid (though I, personally, am much happier with the beat-up old car than I would be with a commute down I-270 every day).

Posted by: Anonymous | December 7, 2006 3:43 PM

My small (50 employees plus) non-profit just started a "Leave Bank" that employees can contribute to at the end of the year when they will loose their leave through non-use. It took about 5 years to get it though, way too late for my maternity leave. This is a HUGE benefit - has been used by a couple women that had babies and one woman that lost her mother to cancer. The leave bank will pay the gap between paid leave and short term disability if there is a medical situation (baby) and there is "discretion" when someone applies to the leave bank due to an extraordinary circumstance.

As for the lady with the story yesterday, before anyone makes any judgement on her, her company or her elected representatives - there needs to be more facts presented. Sounds like she got the shaft but who knows?

Posted by: CMAC | December 7, 2006 3:44 PM

Questionauthority: your parents were "breeders" too, and had they not "bred," you wouldn't exist. So shut up.

Posted by: jrbobdobbs | December 7, 2006 3:49 PM

If this discussion demonstrates anything, it is that employees need to learn their rights under federal law, whether it be the FMLA, the Civil Rights Act, the Americans with Disabilities Act, etc.

It is not the employer's job to inform employees of their legal rights. Employees must take the inititiave to learn what relief is available to them, and can do so fairly easily on the Internet or at their local library. When legal assistance is necessary, a consult with a lawyer may be in order. Many situations can be resolved informally or administratively, without litigation.

Your boss isn't there to hold your hand. Everyone needs to learn how to look out for themselves.

Posted by: your boss isn't your lawyer | December 7, 2006 3:54 PM

One exception: employers are required to post certain notices regarding legal rights, such as minimum wage, safe work environment, and basic FMLA info. This is not intended as advice, however, employers are just required to post it.

Posted by: your boss isn't your lawyer | December 7, 2006 3:56 PM

3:43 anon: We're trying to do the math to make it happen, and it's just not going to pan out. Maybe it's an issue of when you bought your house/small mortgage payment. We don't have the killer commutes, so technically we should save money there (not to mention hugely increase quality of life). We have one paid-for Hyundai, hardly a high-end stylin' vehicle. I don't have a shopping problem. We make our lunches. We do max out our IRAs, but you can hardly blame us. We bought a MAJOR fixer-upper, which certainly drains off any excess at the end of the month, but it meant we could afford the mortgage. That's, fortunately, coming to completion.

I'd LOVE LOVE LOVE to see an article on the budgets of SAHPs in our area compared to the budgets of WOHPs who don't think they could keep one parent home. It would REALLY put things in perspective. Maybe we COULD find a way for my husband (who makes less) to stay home.

Leslie, Brian, are you listening? I'd love me some numbers...

Posted by: atb | December 7, 2006 3:58 PM

Actually, we don't max out our IRAs. We max out the employer matches. Free money...

Posted by: atb | December 7, 2006 4:01 PM

"Lawyers get bashed a lot and it's unfortunate in some cases because sometimes the ambulance-chaser working on contingency is the only person who will stand up for the little guy."

Yep, and sometimes he brings pure drivel to court, and walks away the only real winner. The reason lawyers are bashed so often is that there have been far too many suits and legal decisions that defy common sense and are an offense against the reason of the person on the street.

Bring a villain to justice, and I'll applaud you. Win a big judgement for some fool who's too dumb to take reasonable care with a cup of hot coffee, and I'll ridicule you. Do more of the first, and less of the second, and maybe you'll start changing the reputation of lawyers.

Posted by: Anonymous | December 7, 2006 4:01 PM

"Bring a villain to justice, and I'll applaud you"

No one is looking for your applause, dumbkoff!

Posted by: Anonymous | December 7, 2006 4:08 PM

Don't blame the lawyers for the hot coffee verdict. That was a jury verdict. A jury is comprised of "people on the street" (who couldn't get out of it).

Posted by: Anonymous | December 7, 2006 4:11 PM

atb

"3:43 anon: We're trying to do the math to make it happen, and it's just not going to pan out. Maybe it's an issue of when you bought your house/small mortgage payment. We don't have the killer commutes, so technically we should save money there (not to mention hugely increase quality of life). We have one paid-for Hyundai, hardly a high-end stylin' vehicle. I don't have a shopping problem. We make our lunches. We do max out our IRAs, but you can hardly blame us. We bought a MAJOR fixer-upper, which certainly drains off any excess at the end of the month, but it meant we could afford the mortgage. That's, fortunately, coming to completion."

It sounds like you're doing all of the right things. For what it's worth, here's what we've done.

We bought our house in early 1995, in Northern Montgomery County. It was built in the early 1960's (there, now you can guess about how old I am). We're lucky, in that my husband does have a very good job (he's a financial consultant). Still, we bought a LOT less house than we might have been able to afford (it's down right scary how much money the mortgage companies are willing to loan you).

We just replaced one car - it was a small SUV we bought in 1999, and had 170,000 miles on it. We were starting to spend more on repairs than a new car payment would cost. When we bought the SUV in 1999, we got a loan through our credit union, and did an automatic transfer out of our checking account to cover the payment. When we paid off the loan (in 2003, I think it was), we just let that money keep going into the credit union (kind of a "virtual" car payment). We'd built up enough to almost completely pay for a small Mazda for my husband to commute in (the gas mileage is a lot better).

My car was a station wagon we bought in 1992. I lost an elderly aunt recently, and inherited another stationwagon from her (2000, with 80,000 miles - the 1992 had 140,000). We gave the 1992 wagon to our son, who's in college. The one I have now is not what I would have picked - I'd like to think we could trade it in a couple of years.

You're doing better than we are on the IRA's right now. Right now, we're putting a minimal amount into my husband's 401(k). In our defense, we did the Maryland pre-paid college trust for our son, and are doing it for our daughter, who's in high-school. We've put a good bit into 401(k)'s in the past, and hope to again when we get the kids out of college.

I do not intend to criticise anyone who's making good financial decision, or imply that you're somehow irresponsible if you can't afford to stay home. It's tough around here.

Congratulations on your progress on the house! If there's anything I'm tempted to break the budget on, it's home improvements and decorating. I don't need a big house, but I do really enjoy making our home nice. (Part of that's because I grew up dirt poor, and that's made having a clean, attractive house important to me. My husband grew up middle class, and he could care less - to him, a house is just a place to put your stuff.)

Posted by: Anonymous | December 7, 2006 4:16 PM

"No one is looking for your applause, dumbkoff!"

If you don't care about my applause, why does my ridicule seem to bother you?

Posted by: Anonymous | December 7, 2006 4:17 PM

Too boring today....

There once was a girl from Nantucket,

Posted by: SpiceGuy | December 7, 2006 4:18 PM

"Don't blame the lawyers for the hot coffee verdict. That was a jury verdict. A jury is comprised of "people on the street" (who couldn't get out of it)."

That case should never have been brought to court. Yes, the jury should have had more sense - but the lawyers who argued it should be ashamed.

Posted by: Anonymous | December 7, 2006 4:18 PM

lawyers have no shame.

Posted by: Anonymous | December 7, 2006 4:18 PM

"That case should never have been brought to court. Yes, the jury should have had more sense - but the lawyers who argued it should be ashamed."

There are lots of procedural mechanisms to get rid of "frivolous" cases. I'm sure they were all employed here, given the parties involved. Incidentally, the coffee was kept ridiculously hot, much hotter than say your coffee from your machine at home.

There was a cause of action under the law, it went to the jury, it went on to appeal, and now it's over. That's how the system works.

Posted by: Anonymous | December 7, 2006 4:22 PM

"(Part of that's because I grew up dirt poor, and that's made having a clean, attractive house important to me. My husband grew up middle class, and he could care less - to him, a house is just a place to put your stuff.)"

Interesting. I grew up dirt poor and I don't give a hoot what anyone thinks of me or my house; my husband grew up middle glass and he is VERY concerned about what
other people think...

Posted by: Anonymous | December 7, 2006 4:24 PM

Well, I've been away for several weeks and see there is still some of the standard in-fighting going on in this blog.

Let me start with something slightly off-topic here. I'm curious what some here think about this article that I found on Yahoo! that is on-topic for the blog in general if not FMLA:

http://biz.yahoo.com/special/allbiz120606_article1.html

How many people think that their white-collar work environment could work with such a policy in place? I realize that outside the white-collar world, it wouldn't work, but what about those of us that are office workers?

Back on-topic, some details from my personal situation that may help the discussion of FMLA. As some know, my wife has a genetic disorder that lead to her being legally blind about 3 years ago. With a new transplant surgery, the genetically defective limbal stem cells (the stem cells in the eyes that repair damage to tissue such as corneal tissue) were transplanted from a cadaever donor and her eyesight was restored. This has required 7 surgeries on her eyes over a 3 year period, and travel to and from Cincinnati where our eye surgeon works. We have had to travel to and from Cincinnati for checkups ranging from every four weeks immediately after each surgery to now every 10-12 weeks after almost 4 years (it's been 18 months since her last surgery). I am fortunate that I have a high tech job that allows me to build comp time up and use it to augment my paid leave (and I frequently end up working long hours between doctors visits to accrue enough leave for the next visits--each of which is a 2-day round trip to make the 550 mile one-way trip).

My wife being a civil servant can use the FMLA. She has taken quite a lot of LWOP through the FMLA. The paperwork is there and sometimes oppressive (she has to apply before each surgery, have medical justification from our surgeon, have it reviewed and approved by the agency physician who calls our surgeon to review the case and then have reviews by the agency physician during the post-surgery period to determine when a realistic return to work is, etc). In fact, at one point, even though she was ready to return to work, the agency physician would not allow her because he hadn't had an okay from her surgeon. She was forced to take an additional week of LWOP until the two doctors could confer and agree on a return to work date. And when she goes over 80 hours (or 160 or 240, etc) she loses one pay period's worth of standard annual leave and sick leave accrual. She was not required to use up her annual leave or sick leave before using FMLA (although we balance the LWOP with the annual leave usage).

It's a pain, but without this, she would probably not have been able to take the leave necessary for the surgeries and would be legally blind. Since she has a lot of time vested in the federal government and we can't afford to lose her accumulated retirement benefits (and if she left and returned, she would have to leave the better older retirement program and come into the newer weaker retirement program), she would probably be legally blind and our lives would be significantly more difficult.

We are amongst the many in the majority that have used FMLA for something other than having/adopting a child (slightly over 80% of those using FMLA use it for something other than childbirth/adoption/fostercare.

Posted by: DadWannaBe | December 7, 2006 4:29 PM

"Interesting. I grew up dirt poor and I don't give a hoot what anyone thinks of me or my house; my husband grew up middle glass and he is VERY concerned about what
other people think..."

People are funny, aren't they? I lived in a poor family in the middle of what was basically a fairly middle-class area. My parents were poor because they were disabled. All of my non-disabled friends and relatives were better off financially. My mom didn't know how to keep house, and I wore a lot of hand-me-down clothes. I was a kid, and it embarassed me.

I think my husband just isn't that into appearances, and doesn't feel like he has anything to prove. Honestly, he's a bit of a slob in some ways (well, to be fair, clean but very disorderly).

Posted by: Anonymous | December 7, 2006 4:30 PM

"That case should never have been brought to court. Yes, the jury should have had more sense - but the lawyers who argued it should be ashamed."

And people who don't know the facts shouldn't keep citing this case. Please take a minute and learn something:

http://www.atla.org/PressRoom/FACTS/frivolous/McdonaldsCoffeecase.aspx

Unless of course you're referring to McDonald's lawyers, who should have paid the poor woman's medical expenses in the first place!

Posted by: Anonymous | December 7, 2006 4:34 PM

re anon again:

(Sorry if this off-topic, boring, or too focused on responding to one person.)

The crazy thing is that our financial advisor (ya, even "poor" people can use them!) was surprised at how much better we're doing than most of the people he sees in our situation. We haven't fallen into any of the pits (esp. consumer debt) that lots of folks our age have. And yet... Don't get me wrong, knowing we're doing things right is a huge weight off our shoulders and gives us some sense of pride, but riding around in my buddies' yummy BMW sure is nice...

The house is fun, mostly. This is the 2nd one we've done, so we're getting pretty good at it. It seems to be a family legacy: your first couple of houses should be pits that you do all the work on. My husband has become very competent with electricity, which scares the crap out of me. (not his workmanship, but the actual electricity) I'm just a demolition monster. You're not going to fix it until you've made a huge mess.

Posted by: atb | December 7, 2006 4:35 PM

"That's how the system works."

Uh huh - and that's why many of us are convinced it's broken.

Whatever you view of the merits of this particular case, I'd suggest that the broader issue is cause for serious concern. There is a growing public sentiment that the legal system does not work well - some people win "lottery" cases, while others who are clearly guilty (think O.J. Simpson, for instance) get off scot free.

This has to be addressed if we are to have continued support for the legal system. A "nation of laws" can only stay such if there is broad, genuine respect for the law and confidence that it will be fairly, rationally and uniformly applied - confidence that the law as applied is, in fact, better than ignoring or subverting the law.

You may believe that the coffee verdict was absolutely correct. That's almost irrelevant. Bizarre legal decisions are staple "news of the weird" or "that's outragious" items in popular newspapers and magazines these days. We have far too many decisions that are inexplicable to the average person, and are ripe fodder for public ridicule and laughter. How can the legal system survive that over the next hundred years?

Posted by: Anonymous | December 7, 2006 4:40 PM

To atb - umm, I'm the SAHM, and I WAS being sarcastic. I've been volunteering at my kids' school all day and popped home for lunch and didn't appreciate the idea that I don't work. I could have responded with a diatribe against the poster, I opted for snarky. By the way, while I realize that I'm lucky to be home. I work very, very hard for my family and community AND Ellen isn't on until 3:00 here. I will watch Dr. Phil while I fix dinner.

Posted by: to atb - don't speak for me | December 7, 2006 4:41 PM

Great topic today, though I admit I am rather uneducated about it. Can you take FMLA for yourself for a non-life-threatening illness? Suppose, say, I wanted cosmetic or reconstructive surgery, removal of nonmalignant melanomae, or physical therapy? I'm not being sarcastic. Can you use FMLA for non-emergency medical treatment?

"One of my best friends came up with crapweasels, I'm very fond of it."

I'm pretty sure that came from Ross on "Friends" back in the '90s. Ross to Paolo: "Do you know what a crapweasel is? You are a HUGE crapweasel!" Yeah, I watch too much TV, I know.

To 3:43--PLEASE tell me cars don't generally die after 150K miles. My old girl is steady at 120K and I hope to keep her another year at the very least.

Posted by: Mona | December 7, 2006 4:43 PM

I have to admit I can't get the word crapweasel out of my brain now.

watch out world!

Posted by: dotted | December 7, 2006 4:45 PM

Look, of course some lawsuits are meritless (and some very wealthy and famous bad guys get off scot-free), but let's not forget that in tort cases (product defects, etc.) the "average person" (i.e., the jury) decides who wins. In particular, the question of "negligence" is left entirely to the jury to decide.

Obviously decisions that may be incomprehensible to the public on the basis of scandalous and sensationalist newspaper reporting were more than comprehensible to the 8 or 10 or 12 or whatever average people who made those decisions.

If you have not served on a jury, I urge you to do so--it is an eye-opening experience.

Posted by: Anonymous | December 7, 2006 4:46 PM

Having lived in construction zones for 3.5 years of our 5 years of marriage, if we cared about the state of our home(s), you'd have to commit us. And, strangely, maybe because our friends are pretty awesome, we've only ever been complimented on our progress. Meanwhile, I grew up in a sterile German-run household. Husband grew up in an outwardly very clean house, but don't open any drawers or closets. My MIL visited recently and asked if she could clean our ceiling fans. They -are- filthy, but, hello, we live in a construction zone and, seriously, you want to clean my fans? And poor does not = dirty/messy! My line of poor sterility-seeking Germans proves that!

Posted by: atb | December 7, 2006 4:48 PM

"We have far too many decisions that are inexplicable to the average person, and are ripe fodder for public ridicule and laughter. How can the legal system survive that over the next hundred years?"

Like it or not, we have one of the greatest legal systems in the world, and it is relatively sustainable. And just because you run your mouth about high-profile cases you don't even have basic facts about doesn't mean anything is wrong with the administration of justice. Just because you may find something "wierd" doesn't mean there is no legal foundation for the claim.

Posted by: Anonymous | December 7, 2006 4:48 PM

"Don't get me wrong, knowing we're doing things right is a huge weight off our shoulders and gives us some sense of pride, but riding around in my buddies' yummy BMW sure is nice..."

Amen to that!

Seriously, it does sound like you guys are doing a very good job with your finances.

I'm glad I can stay home, but I know it's not because I'm particularly virtuous or wise. We've made some good decisions - but we've been lucky too. It sounds like you and your husband are building a good life. I hope that, going forward, you'll be able to do whatever makes the most sense for your family.

And "Amen" on the electricity too - my husband scared me to death a couple of years ago, doing some work for his mom. Turns out the circuit he thought was turned off was really live. He went to strip a wire that was hot, and when the electricity hit him his muscled clenched and he (luckily) cut right through the wire and broke the connection. We had words as soon as I learned what had happpened.

Posted by: Anonymous | December 7, 2006 4:49 PM

Can my husband use FMLA to remodel our bathroom, because if he doesn't do it soon, he will have a serious medical condition?

Posted by: catmommy | December 7, 2006 4:54 PM

catmommy--LOL!

Posted by: Anonymous | December 7, 2006 4:56 PM

If we were to make a list of what's broken in this country, I would have to put the legal system down pretty far on the priority list.

Even if you take the branches of government and you allow law = judicial branch, the other two branches, it seems to me, are far more broken.

One man's opinion.

Posted by: Proud Papa | December 7, 2006 4:57 PM

Again, off topic...

Maybe that's part of the reason SAHP and WOHP are in this "war." They each come across as though they think they are more virtuous/wise than the other. As in, we're so humbly poor and you're clearly filthy rich to afford to be home vs. you can't control your spending so you have to outsource parenting.

Anyway, I'd love to see a local analysis on the spending habits of both groups.

Posted by: atb | December 7, 2006 5:00 PM

Mona,
Many, many cars easily outlast the 150K mark - the last two trucks I drove had more miles than that at the time I PURCHASED them - and my family has been known to get 300+ on various vehicles over the years (all foreign makes, incidentally)- but it certainly requires staying on top of maintenance and not letting small problems turn into larger ones :)

Posted by: TakomaMom | December 7, 2006 5:00 PM

"If you have not served on a jury, I urge you to do so--it is an eye-opening experience"

I have served on a jury. I'm still convinced that there are too many boneheaded legal decisions made. Yes, they represent a small minority. But the dollar amounts involved are sometimes huge, and they serve to undermine public trust in the system. The jury system is a wonderful thing - but that doesn't mean that a really slick legal team can't work the system in a way that was never intended and produces results that do not make sense.

"Just because you may find something "wierd" doesn't mean there is no legal foundation for the claim."

No, of course not. However, just because there's a legal argument or precedent for a claim does not mean that it's reasonable, just or good for society.

Please step back and listen to my concern. The average person has a sense of what's fair and just. If the decisions produced by our legal system get too far removed from the general public consensus of what's fair, just and reasonable, then it will begin to lose public support.

Set aside for a moment the question of whether journalists and readers are adequately educated about the law and specific cases - I think it's pretty clear that the current coverage of unusual legal decisions is strong evidence that the system is drifting away from the public consense of what makes sense. That's bad.

You seem to be arguing that it's becuase the public is wrong. Could be - I don't think it matters. Ultimately, I believe, the public understanding of what is fair will be reflected in our legal system, one way or another. I'm convinced that it's going to be less painful and disruptive if we recognize the problem, and take orderly steps to rationalize the system.

Posted by: Anonymous | December 7, 2006 5:00 PM

There is a great essay called "The Music of Law." It reminds me of the scene in "White Men Can't Jump," where Wesley Snipes tells Woody Harrelson that he may "listen" to Jimi, but he can't "hear" Jimi.

Posted by: lawgirl | December 7, 2006 5:01 PM

to anon at 5:00 p.m.: You might pause for a second and consider that a little more than half the lawyers you're slamming have nothing to do with litigation, never see a courtroom and don't thrive on PR or controversy. A lot of us just help you buy or sell your house, avoid getting into trouble with your homeowners association, counsel you on noncompetes handed to you on your first day of work at a new job, or help you get a patent on that great new invention in your garage. Perhaps if you understood a little bit more about the wide range of work lawyers do, you might be a little more fair and targetted in your criticism. Or you can continue merely spouting what you read on some wing-nut's blog . . .

Posted by: Anonymous | December 7, 2006 5:05 PM

Perhaps the most sensational trials get covered is because, drumroll, they are INTERESTING! The newspaper-reading, news-watching public is overexposed to the "wierd," because not that many people care about the mundane. A few out-there verdicts don't mean there are a disproportionate amount of out-there cases, it just means they are reported on more often.

For example, if it involves a celebrity, you can bet it will be covered by every available news outlet, and you can bet it will be a circus, ala Michael Jackson.

Posted by: j-school grad | December 7, 2006 5:06 PM

Takoma, thanks for the input! I got mine when she was about 60K...incidentally I bought her used, outright, from an insurance payout. My previous car--bought new--was stolen one month before I paid it off. ::grr:: I won out, though, because this car was worth more and is definitely more reliable. It's domestic, and a couple of things have gone wrong with it, but I'm lucky to have handymen in my family who will do the work for parts and a nice dinner. :)

Sorry about the off-topic, guys.

Posted by: Mona | December 7, 2006 5:08 PM

What does this have to do with FMLA? Did the McDonald's lady have to take FMLA when she got third-degree burns over 6 percent of her body?

Posted by: catmommy | December 7, 2006 5:09 PM

Mona--unfortunately, cosmetic surgery is not covered by the FMLA. From the DOL site is the description of the designated uses of the FMLA. It has to be a serious medical condition. Of course, it depends on how your employer categorized "serious medical condition" but if you work for the federal government, they do have physicians in each agency that review your application for FMLA and have to approve whether your reason is considered valid for using FMLA.

=====

"Covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

- for the birth and care of the newborn child of the employee;
- for placement with the employee of a son or daughter for adoption or foster care;
- to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
- to take medical leave when the employee is unable to work because of a serious health condition.

Posted by: DadWannaBe | December 7, 2006 5:12 PM

i'm still trying to figure out why somebody thinks denmark is going to be invaded & by whom.

Posted by: quark | December 7, 2006 5:15 PM

quark--didn't they tell you? Saddam Hussein said in his trial that "Something is rotten in the state of Denmark. They shall be the next to fall..."

Posted by: DadWannaBe | December 7, 2006 5:17 PM

I'll be a band of drunken fraternity boys could take Denmark...

Posted by: Anonymous | December 7, 2006 5:20 PM

See, here's the thing. Some of us disagree with your basic premise:

"The average person has a sense of what's fair and just"...."the public consense[nsus] of what makes sense"...."public understanding of what is fair will be reflected in our legal system..."

I happen to believe that no such thing exists. If it did, we could write it down and there would be no need for jury deliberation. If consensus on fairness did exist as you pre-suppose, it would be in lieu of first hearing all relevant facts, which is exactly the point of a trial.

It also MAY be true that in a highly capitalistic, highly market-driven, highly corporatist environment, if such a consensus did exist it could be molded and swayed to serve the markets and corporations.

And my point about the three branches of government applies here. The judicial branch is perhaps the branch least likely to be swayed by either public opinion or the markets. Which I think is a good thing.

Catmommy, this discussion will make my head explode shortly, which will put me on FMLA.

Posted by: Proud Papa | December 7, 2006 5:21 PM

"You might pause for a second and consider that a little more than half the lawyers you're slamming have nothing to do with litigation, never see a courtroom and don't thrive on PR or controversy. "

Point well taken. I thought it was pretty clear what type of legal actions I objected to, and the subset of courtroom lawyers involved, but I didn't in fact specify that. O.k. - most lawyers are honerable men and women doing good and useful things.

"Or you can continue merely spouting what you read on some wing-nut's blog . . ."

This I object to. I've argued vigorously against certain types of lawsuits and certain legal decisions, but I have not directed insults against anyone commenting on this blog. I don't know where you've gotten your arguments - and I don't care. The content of what you say is what's important.

Beyond that, I believe you've got your head in the sand if you think my concerns about our courts are limited to "wing-nuts." These concerns are as mainstream as "Readers Digest," for goodness sake. This isn't some Republican nutcase in a bunker somewhere in rural Texas - this is your grandmother, my uncle and the plumber down the street.

If that portion of the legal profession responsible for the decisions that show up in the newspaper can't do a better job of explaining the results to the public, it's got a serious problem. As it stands, far too many of us think that justice is blind not because she's impartial, but because a lawyer has pulled the wool over her eyes. And saying "you just don't understand" is not gonna cut it.

Posted by: Anonymous | December 7, 2006 5:23 PM

I was trying to stay out of the litigation debate going on here, but here goes.

One of the problems with the contention that the general public has a sense of "fair" and "just" is that it isn't always black and white and sometimes those shades of grey are very difficult.

For example, listen to the arguments in the vast majority of divorce courts and you'll hear some things that people believe they are entitled to that are just insane. Listen to the arguments in any number of small claims courts and you'll find that people often believe in a sense of entitlement that may color their sense of both fair and just.

This is why we have laws, lawyers and courts. There needs to be an impartial judge and system designed so that equity is imposed even when the litigants cannot agree one what is fair or just. Or when fair and just don't necessarily mean the same result.

This doesn't mean that I think the current legal system is hunky-dory. I believe that our legal system does need some fixing. One major adjustment that needs to be done is that there need to be heavier penalties for frivolous litigation. Some significant problems in our current environment are due to the high costs of litigation, suits, etc and the insurance necessary to protect against them. Thanks to the circular system of insurance and costs, we are rapidly pricing ourselves out of the protections that we need due to the insurance it costs to protect the true needs from the frivolous ones.

However, that is not particular germaine to the FMLA. Sorry for the off-topic post.

Posted by: DadWannaBe | December 7, 2006 5:30 PM

""The average person has a sense of what's fair and just"...."the public consense[nsus] of what makes sense"...."public understanding of what is fair will be reflected in our legal system..."

I happen to believe that no such thing exists. If it did, we could write it down and there would be no need for jury deliberation. If consensus on fairness did exist as you pre-suppose, it would be in lieu of first hearing all relevant facts, which is exactly the point of a trial."

Now this is a useful area for discussion.

Clearly, you can't decide a case without investigating all of the facts and circumstances. When I say that we share a common sense or understanding of what's fair, I do not mean (and never suggested) that we know beforehand the correct result for any possible legal question, without knowing the facts and circumstances.

I do mean that people in our society share certain core values: it's not fair to take what belongs to another; if I intentionally harm you I should make restitution; no one can forsee all possible contingencies, and some things are simply accidents, etc. Those are, of course, extremely simplified examples.

There are also some issues in which justice and fairness are very difficult to discern. Grey areas exist. On the other hand, not everything is a grey area. Sometimes you can take a particular set of facts and circumstances and 90% of the people you would ask would agree either that "yes, that's fair" or "no, that's not fair."

My problem is that there appear to be way too many cases where the legal system reaches one conclusion, but 90% of the people who go back and look at it - including those who are interested enough to really dig in - say "heck no, that decision is absurd."

If that happens because the people commenting don't understand the issues involved, then you're correct (though I still think it creates a potential problem). When it happens even though the facts and circumstances are well publicised and well understood, then I'm convinced that we have a legal result that's out of touch with our common understandings of fairness.

Posted by: Anonymous | December 7, 2006 5:34 PM

"Well, I've been away for several weeks and see there is still some of the standard in-fighting going on in this blog."

If you don't like it, Wanna-Be, why come back?

Posted by: Anonymous | December 7, 2006 5:57 PM

If you don't like it, Wanna-Be, why come back?

Posted by: | December 7, 2006 05:57 PM

=====

The topic of the blog still interests me. I didn't leave because I couldn't stand the heat or the divisiveness, but because other aspects of my life got busy and it was the low priority. Now that other things have quieted down and I have the time, I am interested in the discussion of work-life balance so I've come back. It isn't likely to drive me away, but it does disappoint me. Alas, life is full of disappointments.

Posted by: DadWannaBe | December 7, 2006 6:03 PM

"These concerns are as mainstream as "Readers Digest," for goodness sake."

Readers Digest is pretty far out there to the right. Many of RD's regular readers could quite fairly be called "wingnuts."

Posted by: Anonymous | December 7, 2006 6:09 PM

dadwannabe,

Nice to see you back!

Quark,

That was my post about Denmark, not really a who is going to question, but a what if question. I ask it because someone said they have no military, but they have great social benefits, which is a trade off that I wouldn't want. Sorry that I forgot to sign my post, that happens when there is too much blog and not enough work going on.


Posted by: scarry | December 7, 2006 6:23 PM

"This has to be addressed if we are to have continued support for the legal system."

I'd like to know what your alternative is, exactly.

Also, you keep referring to "the legal system" as if it synonymous with lawyers. However, as has been continually pointed out to you, the clients and the jurors are not lawyers, and in some states not even the judges are lawyers, they are regular people and they make up a good portion of "the system" you are referring to.

Posted by: Megan | December 7, 2006 6:45 PM

In reading discussions like this I rarely see entries from anyone who works in HR or from managers who are required to somehow compensate for employees who are out for several months. In DC it's 16 weeks; in Calif it can be up to 6 months. I administer FMLA for 2100 employees and my days are filled with people looking for job-protected leave, always wanting to know how long they can safely be out for. The company maintains health insurance; we used to collect the employee portion when they returned to work but after discovering we lost $10,000 in 3 months when people did not return we changed our policy to pay-as-you-go. As for paid leave, who pays?? What's that impact on business or gov't? People don't choose medical emergencies but they do choose pregnancy. Having some money and leave in the bank might be a good idea. I know people will likely crucify me for this post but the business perspective is usually missing from the debate. You are all preaching to the choir. The changes that congress has been promising for years are to bring some balance to the law that since its inception in '93 has been stacked entirely in the employee's favor. Sorry, but it's true.

Posted by: BenefitGuy | December 7, 2006 9:55 PM

When our third child was born, I stayed home with him and my wife for two weeks.

When I told my (female, childless) boss that I also wanted to take a month off to stay home with him after my wife went back to work, she blurted out, quite loudly, "A WHOLE MONTH! Are you allowed to do that?"

Posted by: Rockville Dad | December 7, 2006 10:26 PM

Benefit guy-

I'm all for owe-back. I think it's appalling that someone takes the leave and benefits, then tells the employer, oh, BTW, thanks for the cheap insurance, I'm not coming back. They should owe the company for the health care costs the company paid for during FMLA time. Of course, if you use earned sick and annual leave, you should owe the company nothing. There is always room for abuse. Most of us don't do it, but those who do end up screwing the rest of us.

Posted by: atb | December 8, 2006 8:07 AM

Anon said:

*Sometimes you can take a particular set of facts and circumstances and 90% of the people you would ask would agree either that "yes, that's fair" or "no, that's not fair."

My problem is that there appear to be way too many cases where the legal system reaches one conclusion, but 90% of the people who go back and look at it - including those who are interested enough to really dig in - say "heck no, that decision is absurd."*

Okay, Anon lets do the Devil's Advocate thing for a second. Lets assume you're right. There is some degree of public consensus around fair conclusions to a given set of cases.

As you said, we still have to deliberate the facts of those cases. Therefore, the cases still have to be brought before the court and heard. Even in your example they would not be simply dismissed.

So, it seems to me then that what you MAY BE suggesting (don't want to put words in your mouth) is that judges have the freedom to set-aside verdicts that they believe are not consistent with public consensus. The problem there would be that it violates the individual's right to trial by a jury of one's peers. A judge could set aside certain verdicts on procedual grounds or outliers where juries award damages that (in the judge's opinion) far exceed what is warranted. But if a judge could set aside any opinion at any time, then we wouldn't need jury trials because the judges would wind up deciding all the cases anyways.

Given the above, in practical, actionable terms, exactly what do you propose we do to the legal system to "fix" it?

Posted by: Proud Papa | December 8, 2006 8:30 AM

"Also, you keep referring to "the legal system" as if it synonymous with lawyers. "

No, I don't. There is a subset of individuals who, with the assistance of a subset of lawyers, are bringing cases that should never be given serious consideration, or should not result in the very large awards granted them. The individuals and lawyers involved should be ashamed of themselves, but they do this because it works. The mechanisms for weeding out frivolous lawsuits are failing too often, and the mechanisms for ensuring that awards are just and equitable are also failing too often.

Posted by: Anonymous | December 8, 2006 9:33 AM

I would like to ask a question regarding this statement from the FMLA: Employers covered by the law must maintain for the employee any preexisting group health coverage during the leave period and, once the leave period has concluded, reinstate the employee to the same or an equivalent job with equivalent employment benefits, pay, and other terms and conditions of employment. What does this mean in reality? If a woman came back from maternity leave and 2 months later was fired, is this a violation of this act? And if so, is there a time to file a complaint?

Posted by: dcmomof2 | December 8, 2006 9:39 AM

Only saw this website yesterday and haven't read everything yet. FMLA is a wonderful program. My husband had surgery for cancer. The HR Dept where I work recommended I take it. My husband's doctor had to confirm his illness directly to HR (no opportunity to make up an imaginary illness?) As it happens, I did not take very much time off work at all - I worked my lunch breaks, came in early, etc., etc., but when I needed time off to take my husband on hospital appointments, visit him in hospital, etc., I could do so without the added worry that I would be abusing the regular time-keeping system at work. At times when spouses or parents are seriously ill and need support from family members, it is wonderful that working people can survive such emergencies and know that their job is secure. Employees are not being paid for this time off so they are not benefiting financially. It is my undertanding that it was President Clinton who pushed through this legislation for FMLA, and if this is correct, he earns my highest praise. Please leave this system alone. It is a godsend for those who need it.

Posted by: Susan | December 8, 2006 9:39 AM

Alright. I think the discussion about the legal system would benefit from some facts about how it actually works (since it looks like there are a number of wrong assumptions floating around). Disclaimer: this is a description of how things work in federal court. I believe most states have similar procedural steps, but your mileage may vary. Disclaimer #2: this is a description of a civil suit. Criminal prosecutions have their own sets of rules and procedural safeguards mandated by the Constitution.

1. a complaint is filed. That's where the person suing (the plaintiff) says what the person being sued (the defendant) did that was against the law and in what way the plaintiff was damaged.

2. the defendant can immediately challenge the complaint through a motion to dismiss. A motion to dismiss basically says, assuming for the sake of argument that I actually did all the things that the plaintiff says I did, that is still not illegal. (E.g.: if my neighbor sues me because I bought a bigger car than he has and he is suffering emotional distress from it, I can ask the judge to throw out the suit because, in essence, "so what?")

3. If the defendant chooses not to immediately challenge the complaint, or loses the motion to dismiss, then the lawsuit goes on. The defendant files an "Answer" in which he gives his version of the facts. Then there is discovery, during which the parties exchange documents and interview each other's witnesses under oath (this is called a "deposition.")

4. At the end of discovery, the plaintiff and the defendant can each file what is called a motion for summary judgment. Most commonly, these are filed by the defendant. The defendant basically says: look, Judge, in order to win this lawsuit, the plaintiff has to prove A, B, and C. We are now at the end of discovery, which means that we know exactly what the plaintiff's evidence in support of his case is going to be, and there just isn't enough there for anyone in their right mind to say he wins. (e.g. my neighbor sues me because he says I drove my car into his fence, but his fence is fine, my car has no scratches, and none of the neighbors heard any noises at the time he says this happened.)

4. If there are no motions for summary judgment or the judge denies all of them, the case proceeds to trial. (Keep in mind that at any point during this entire process the parties can agree to settle the case.) A jury is picked and hears the evidence.

5. Before the jury deliberates, either party can ask the judge to hand down a verdict without submitting the case to the jury. The standard for doing this is very stringent--essentially, the judge must be convinced that no reasonable person could disagree on what the verdict can be. It is very rare for judges to do this; usually they prefer to let the jury take a shot.

6. The jury deliberates and returns a verdict. If the plaintiff wins, at the same time, or sometimes after a separate part of the trial, it also decides what the defendant should pay the plaintiff for the damages the plaintiff has suffered as a result of the defendant's illegal conduct.

7. Either party has yet another shot at changing the verdict. The losing party can move for "judgment notwithstanding the verdict"--the standard, again, being that no reasonable person could possibly have found the way the jury did. Either party can also challenge the damages, saying they are too much or too little. The judge has the authority to change the amount upwards or downwards if she believes the award to be unreasonable.

8. Unhappy parties can appeal any part of the verdict, including the damages, to the court of appeals and, theoretically, to the Supreme Court (though in practice the Supreme Court takes a minuscule number of cases). The court of appeals gets a fresh look to any legal issues (e.g. when the judge instructed the jury at trial, she was wrong about the law) but treats the jury's factual determinations with great deference.

To summarize: Truly frivolous lawsuits are weeded out at the motion to dismiss and the summary judgment stage, and if the evidence at trial was really insufficient the judge has the power to ignore a jury's clearly irrational verdict.

That's the system. I am sure it fails every now and then, but it seems pretty good to me.

Posted by: aging mom | December 8, 2006 9:46 AM

"So, it seems to me then that what you MAY BE suggesting (don't want to put words in your mouth) is that judges have the freedom to set-aside verdicts that they believe are not consistent with public consensus. The problem there would be that it violates the individual's right to trial by a jury of one's peers. A judge could set aside certain verdicts on procedual grounds or outliers where juries award damages that (in the judge's opinion) far exceed what is warranted. But if a judge could set aside any opinion at any time, then we wouldn't need jury trials because the judges would wind up deciding all the cases anyways.

Given the above, in practical, actionable terms, exactly what do you propose we do to the legal system to "fix" it?"

Excellent questions. First of all, I don't have all the answers. I am convinced that recognizing we have a problem is an important first step to finding a solution. I also think that trying to understand why the mechanisms we've already put in place don't seem to be working is critical.

I would oppose eliminating juries - they have been an important part of our legal system for centuries, and have some very real advantages. Personally, I'd suggest a thorough review of the way scientific evidence and expert witnesses are used in the courtroom. I'd also suggest a thorough review of how punitive damages are awarded (and who gets them). The theory of punishing egregious behavior is appealing, but punitive damages (and, to a lesser extent, non-economic damages) seem to be one area where juries can easily lose their way based on emotion.

If that's not specific enough, I'll go out on a limb and suggest that punitive damages not go to plaintiffs or plaintiffs' attorneys, but be put to an appropriate public use (e.g., public defenders, compensation to crime victims, etc.). I'd also suggest that juries continue to be used in making determinations of fact, and determining compensatory damages, but that judges be given the responsibility of awarding punitive damages.

I'm also not sure that the adversarial model works well with technical and scientific evidence. I've served as an expert witness in a couple of cases, and while watching dueling experts duke it out can be entertaining, I'm afraid it can obscure more than it illuminates. There needs to be a better way of making sure that experts really are experts, and that the evidence they present can be effectively evaluated and weighed by the court.

Like I said, I don't have all the answers. But it seems pretty clear to me that we do have a problem. I'd rather it be addressed before the reputation of the legal system is seriously eroded, rather than after.

Posted by: Anonymous | December 8, 2006 9:47 AM

"That's the system. I am sure it fails every now and then, but it seems pretty good to me. "

No arguments that it's pretty good in most cases. But it does seem to fail much more often than I'd like, and sometimes in fairly spectacular fashion.

Posted by: Anonymous | December 8, 2006 9:49 AM

To: anon at 9:49 am

" it does seem to fail much more often than I'd like, and sometimes in fairly spectacular fashion."

"More often" in what sense? I can think off the top of my head of a handful of cases in the last couple of years that seemed "wrong" in some gut-feeling sense--and of course, gut feeling is just that; I think actually knowing the facts and the law might change things. Thousands and thousands of cases are filed every year. The fact that occasionally a jury decides to punish a corporate defendant in exemplary and perhaps exaggerated fashion does not really say anything about the system. It's like saying that because people crash their cars, highways are a bad idea.

Posted by: aging mom | December 8, 2006 9:53 AM

"Readers Digest is pretty far out there to the right. Many of RD's regular readers could quite fairly be called "wingnuts.""

It also has a truly massive, national circulation. I have no particular interest in carrying the Digest's water, but you're a fool if you think it's some sort of fringe publication - it's as mainstream as USAToday and the National Football League.

Whatever your political cause, if you can't speak to the people who read mass-market magazines and newspapers, you're not going to be able to build a working majority in this country. Dissing the masses and what they read, rather than trying to understand how they think and what they care about, is political suicide.

Posted by: Anonymous | December 8, 2006 9:59 AM

"More often" in what sense? I can think off the top of my head of a handful of cases in the last couple of years that seemed "wrong" in some gut-feeling sense--and of course, gut feeling is just that; I think actually knowing the facts and the law might change things. Thousands and thousands of cases are filed every year. The fact that occasionally a jury decides to punish a corporate defendant in exemplary and perhaps exaggerated fashion does not really say anything about the system. It's like saying that because people crash their cars, highways are a bad idea."

Often enough that apparantly absurd legal decisions are a regular feature in mass-market magazines and newspapers. Often enough that most non-lawyers have their favorite examples of someone getting rich off of a frivolous lawsuit. Often enough that average people worry that they might be sued unfairly, for something that's not their fault, and lose. Bottom line, often enough that it undermines people's confidence that when they go to court, they'll get a fair shake - and that someone else can't somehow unfairly take advantage of the system.

Posted by: Anonymous | December 8, 2006 10:05 AM

to anon at 9:47 am

I just now noticed your post re: expert witnesses. I agree with you that's a real issue, but it's very difficult to figure out what to do with it. The fact is, people with serious credentials in their fields really do disagree about stuff. That's why we get second opinion from doctors, etc. It seems reckless to have the experts duel in front of the jury and have the jury decide who is right, but the alternatives are worse. The judge could decide (but why is she in a better position than 8, 10, or 12 people?); the judge could decide through a court-appointed expert (but if the field has "camps," the "camp" the expert belongs to will decide the lawsuit). It's very, very hard. In my own experience, truly fringe positions are easy to debunk, but if both experts have reasonable opinions, that's one for the jury--or for settlement.

Posted by: aging mom | December 8, 2006 10:06 AM

"I just now noticed your post re: expert witnesses. I agree with you that's a real issue, but it's very difficult to figure out what to do with it. The fact is, people with serious credentials in their fields really do disagree about stuff."

If it were easy, we'd probably have already figured it out. I do think we need to try to improve the situation. In many cases it probably is easy to weed out the fringe positions - but when we don't, we can end up with truly bizarre results. Also, sometimes the jury simply has a difficult time evaluating the evidence.

I guess I'd like clearer rules and a better process for certifying experts. This is the wrong term, but perhaps something along the lines of an "arbitration" process could be used when multiple experts are involved, to determine in an orderly way where they agree and clarify the points of disagreement before it goes before a jury.

My sense is that juries are very good at evaluating some things, but very technical or scientific evidence is a challenge for them. I don't want to eliminate the jury, but it would be very helpful if we could find a better way to sort through and tee up those issues for them.

Posted by: Anonymous | December 8, 2006 11:05 AM

I agree with you that experts are a sore point. So many lawsuits that produce large verdicts hinge on the Battle of the Experts--and our system, which is based on trusting the layperson to do the right thing, does not accommodate that too well. Your arbitration solution is interesting-- especially if it followed the typical rule for arbitral tribunals: each side chooses one arbitrator and the two arbitrators choose a chair. The problem is that the right to a jury is in the Constitution, and off the top of my head I would think that splitting off an important part of the case and handing it to someone else would not fly. But I definitely can't swear by that.

Posted by: aging mom | December 8, 2006 11:54 AM

"The problem is that the right to a jury is in the Constitution, and off the top of my head I would think that splitting off an important part of the case and handing it to someone else would not fly. But I definitely can't swear by that."

I don't know if it would work or not. I was thinking of something like the typical arbitration process. So, if both sides have an expert, you'd go to a panel to discuss what would be presented to the jury. Both sides would pick an "arbitrator" and they, or the judge, would pick a chair.

The purpose of the process would be to stipulate a set of facts and opinions to which both experts agree, identify the relavent facts and opinions that they disagree on, and frame a statement of each point of disagreement that is fair and acceptable to both sides.

I think something like this would focus the courtroom duel in a way that would make it much more useful, and less confusing to the jury.

Posted by: Anonymous | December 8, 2006 12:12 PM

Yeah, that's possible--parties are encouraged to put together a list of "stipulated facts" before the trial, as you probably already know. If the arbitral panel simply agreed on what the parties disagree on, that would be ok. The problem is that experts cost a lot of money (as you probably also already know!), so paying for yet another one may not be popular with the parties. At any rate, I think you'd still have to allow for examination of the experts (where lawyers question the qualifications and generally play gotcha), because that is the only rational way to let the jury decide who they believe. (I am not saying it's a good way, since it can degenerate into a personality context, but that it is the only rational way, because otherwise how is a jury suppose to choose between two theories when even the experts can't agree?)

Posted by: aging mom | December 8, 2006 1:15 PM

"At any rate, I think you'd still have to allow for examination of the experts (where lawyers question the qualifications and generally play gotcha), because that is the only rational way to let the jury decide who they believe."

Agreed - and it may be that this wouldn't really help all that much. But I do think we need to find some way to help juries do a better job of evaluating expert testimony.

Posted by: Anonymous | December 8, 2006 2:18 PM

A lot of times it comes down to the fact someone got hurt and someone else has a lot of money and can afford to pay. Jurors are laypeople and unless they have professional and education background in scientific/medical areas (and still manage to stay on the jury, which is another issue), they rely on experts. But you can can actually see their eyes glaze over when an expert starts talking about physics or chemistry or anything else they don't understand. I think a great many jury verdicts come down to the redistribution of wealth because jurors don't know what to do with expert testimony, except go with whoever has the coolest tie.

Posted by: Anonymous | December 8, 2006 2:31 PM

There are already a lot of expert controls in place. An expert who does not meet certain requirements can be disqualified from testifying at trial.

Posted by: Anonymous | December 8, 2006 2:38 PM

hmmm... I give juries a little more credit than that. Not necessarily individual jurors, but juries as units. I know a federal judge who has been on the bench over two decades who says s/he disagreed with the jury's verdict just twice over the entire time. That's pretty impressive. But I know what you are saying about eyes glazing over. Finally, unless someone with some relevant knowledge is in that room, they are just going to try to decide the case on common sense grounds. That can be ok or not so ok; deep pockets probably matter, but I think juries are also pretty good at sniffing out fakes.

Posted by: aging mom | December 8, 2006 2:40 PM

There are already a lot of expert controls in place. An expert who does not meet certain requirements can be disqualified from testifying at trial.

Posted by: | December 8, 2006 02:38 PM

=====

This is not a question of the person's credentials or the persons qualifications to be an expert. But what happens in a case where you have several qualified experts who have a difference of opinion.

For example, in medicine, there are some procedures that one set of physicians deems to be more helpful than not for certain conditions. There are other physicians who think that another set of procedures is better and that the first set is more detrimental to the patient in the long run or for a larger subportion of the population. When these two camps go into trial arguing for or against some negative result for a patient, which holds a higher value? This is the nature of trial by jury. These experts have to present their side of the educated guess or expert knowledge to the jury of laypersons and have that jury decide which has the stronger case.

I have seen times when you have two people that would be considered highly qualified in their respective fields differ quite strongly about certain areas within their expertise and within our current realm of knowledge both could be considered "right".

Backing up, how then do you revise the use of expert testimonial to improve the current system? And how can we improve the system of juries evaluating expert testimony? As anon 2:18 points out, this is the goal. Easy to consider, but what practical procedures or steps can we take to start on this?

Posted by: DadWannaBe | December 8, 2006 3:01 PM

Differing opinions are just inherent in the professions. When you are very ill, you will no doubt get the proverbial second opinion. You cannot tell a jury how to weigh the evidence -- weighing evidence is their province. All you can do it present the testimony, instruct the jury, and let them decide. There isn't a very good way to inject legal standards into the presentation of factual information.

Posted by: Anonymous | December 8, 2006 3:19 PM

This is why information about the expert himself is useful. For example, the fact that a doctor that testifies 100+ times per year only for plaintiffs bears on his credibility, as does one who has written a peer-reviewed paper debunking a certain procedure or drug. I really don't think the average jury gets too hung up on scientific nuances -- they see the big picture: who is this person, what is his background, why is he here, how much is he being paid, do his opinions make sense, etc. I've never heard a juror say in a post-verdict interview that he thought the plaintiff's expert was wrong because his opinions on the cause of death were not scientifically or medically suppored. They usually say he collapsed under cross-examination or lacked credibility.

Posted by: Anonymous | December 8, 2006 3:23 PM

"So, it seems to me then that what you MAY BE suggesting (don't want to put words in your mouth) is that judges have the freedom to set-aside verdicts that they believe are not consistent with public consensus."

Judges do NOT have the freedom to set-aside verdicts that they believe are not consistent with public consensus, and if they were to do so, they'd be violating their oaths. Verdicts have to be consistent with the law and have to be arrived it by means of a process that is consistent with the law. Public consensus doesn't have a darn thinged to do with the standard for overturning a verdict.

It seems to me that one of the fundamental misunderstandings is that judges and juries are free to listen to facts and make the decision they think is "best", e.g., apply their personal values and ethics and come up with what they perceived to be "fair". That's not the law, folks. Juries are tasked with making a decision after they apply the law to the facts.

If you don't like that outcome, you need to contact your representatives and CHANGE THE LAW.

Posted by: Anonymous | December 8, 2006 3:52 PM

Hey, what happened to the FMLA discussion??

Posted by: BenefitGuy | December 8, 2006 4:11 PM

Isn't this column supposed to be about balance, and not about pushing a political viewpoint? FMLA is fine, but again we have to ask, why should employers be giving preferential treatment to people who have made the choice to have kids? It's a choice!

Posted by: ugh | December 8, 2006 5:38 PM

Ugh,
for the fourth time:
FMLA is NOT only for new parents. You can take FMLA because you have a serious illness and run out of sick leave. Or because your dad is dying.

Posted by: aging mom | December 8, 2006 6:25 PM

I was on a jury where the thing that FINALLY got the last holdout to agree with the majority was the information that under Federal law (FMLA and ADA), the employer has to return the employee to an equivalent position. Federal law wasn't actually relevant to our DC-law retaliation case, so we'd all avoided mentioning it, but by Friday afternoon, we had to move the guy along somehow.

There. That brings the discussion back to FMLA.

I used FMLA last Spring to recover from an MS exacerbation. Met-Life provides the administration for my (large, self-insuring company). We combine it with partially-paid short-term disability. I had trouble with the paperwork, because my neurologist is nostalgic for the good ol' days when all he had to do was write a note and that was it. It also wasn't clear from the forms we were given on the first attempt that all he had to do was document that I have a serious medical condition (the MS), rather than convince them that the symptoms I was having prevented me from working.

Posted by: GJ | December 8, 2006 6:40 PM

I don't think this dicussion is really about FMLA. FMLA is a very good benefit that helps people; hard to argue against it. The discusion was really started by Leslie's twisting FMLA around to whine about how the government isn't doing enough to help parent who believe they are entitled to benefits simply for having a child. Having children means change, and you can't "have it all" despite what some parents believe they have a right to have.

Posted by: isn't about FMLA | December 8, 2006 9:14 PM

"Juries are tasked with making a decision after they apply the law to the facts. "

Nice theory - but jury nullification happens. And sometimes, just sometimes, confusion, emotions or other factors get in the way. It's not unrealistic or inconsistent to see the value of juries, but still argue strongly that we need to find ways to make them more effective.

Posted by: Anonymous | December 11, 2006 4:30 PM

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