I would apply FMLA leave for the first 12 weeks and consider additional ADA disability leave for the balance 8 weeks, post birth. What’s the reasoning for not starting FMLA leave as soon as an employee qualifies for it?

For CA employees, my Co likely would offer PDL/FMLA/ADA for 12 weeks, then PDL/ADA to 4 months (approx 16 wks total) followed by ADA only leave if needed or, if not, CFRA baby bonding leave, for the last approx 4 weeks (she could take up to 12 wks of CFRA bonding leave after her pregnancy related disability ends, if desired). COBRA event for maternity leaves occurs after 12 weeks in most states and after 4 months in CA.

If different standards do not apply for an employee who is or becomes disabled why do they apply for a legally responsible spouse who must avoid giving the legal appearance of abandonment of spouse vs. abandonment of employer?

~ M. MORROW-FARRELL

If the employer, however, fired him for another reason (unexcused absences, incompetence, inappropriate behavior, etc.) they can easily get the case dismissed. I don’t see what the problem is.

Excellant article and reply. I have the other side to this coin, but in a California Close held Corporation. My wife was employed, then purhcased shares in the corporation. 2 years later, during settlement of the CEO’s divorce, she purchased a substantially larger share (another $200,000) to buy out the ex-wife of the CEO. At that time she was promoted to Chief Admistration Office and CFO and elected to the Board of Directors. (another employee purchase $200,000 of the shares and also was promoted and elected to the board of directors). Things went well for the company for the next ensuing 6 years with continuous profits and growth of the company. Finally, early last year, the CEO decided to solicit a well known company to analyse the company and offer a buy in of their part, and wanted them to be able to come in under a sweat equity purchase agreement. My wife balked at the idea and countered that they could “earn-in” shares based upon them reaching certain ear-marked goals. The CEO then decided that it was evident that my wife “could not grow with the company” and wanted to buy her shares out. There is a buy-out agreeement, but the CEO refused to abide by the agreement, instead stating that market conditions at this time show the shares were worth only about 55% of the contract agreement; therefore, wanted a discounted buyout. After several months of intense negotiations which failed, the CEO decided to hire his brother as the new COO. All board members agreed and he was hired. The following work day, the CEO came to my wife’s office and evicted her out, saying that his brother needed to be in that office and she was to go to one of the smaller offices. The following Sunday, we personally moved her items out. On Monday, the company had a staff meeting and announcement of personnel changes, including the brother being the COO and then announced that my wife was to be demoted to his assistant. My wife walked in in embarrassment and humiliation and simply can not go back into the office. We feel that she was retailiated against by the CEO for not selling her shares…. In your explanation above, you’ve mentioned cases on the east coast, what about California? Please share with us your thoughts…

Effective January 16, 2009, the rule changed. The Labor Department was concerned that the prior rule encouraged employers to eliminate perfect attendance awards because of the inequity perceived by coworkers of allowing employees who had taken FMLA leave to be eligible for these awards. Under the new rule, if a bonus or other payment is based of the achievement of a specified goal, such as perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied as long as employees on non-FMLA leaves are treated similarly. For example if an employer’s policy does not disallow an attendance award to an employee who takes vacation leave, then the employer cannot deny the award to an employee who substitutes paid vacation leave for FMLA leave.

Source: 29 CFR 825.215(c)(2); 73 FR 67934, November 17, 2008.

For the mutual non-disparagement, though, I recommend avoiding language that “the Company” will not disparage the former employee – it’s impossible to control what managers (or others whose comments may be imputed to the company) may say and you don’t want to get stuck in a breach of contract action because a low-ranking supervisor shot his mouth off at a party. I advise getting the former employee to identify the folks about whom he’s concerned, then using in the agreement language to the effect that “The Company will instruct [these individuals] not to make disparaging comments about Employee.”

Hope this helps.

Now, that said, I think it might be appropriate for someone in HR to check back in with the complaining employee. In fact, it is probably a "best practice" to check back in with a complaining employee after some period of time, to make sure that the initial situation has been taken care of and/or there are not new problems.

In the course of checking back in, I would propose that the HR person allude to the fact that the complainant and the executive appear to be working and spending time together — not in an accusatory way, just as a matter of observation. The HR person could say something positive like, we hope that means the previous issue between the two of you has been satisfactorily resolved and maybe also remind the employee about her right to be free from retaliation, etc. — something to open the door to the employee, in case she had something more she wanted to report.

If the employee says everything is fine, I would make a note to the file about this conversation.