We maintain a thriving Employment Law practice at Monshaugen & Van Huff. We represent both Plaintiff and Defendants in employment actions involving allegations of sexual harassment and violations of the Family Medical Leave Act (FMLA) or the Fair Labor Standards Act (FLSA).

Sexual Harassment in the workplace is a form of discrimination that violates Title VII of the Civil Rights Act of 1964 and the Texas Labor Code. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment. At Monshaugen & Van Huff, we firmly believe in the right of women to pursue their careers in an environment free from acts of sexual harassment. As such, we prosecute Sexual Harassment claims against employers on behalf of women who have been the victims of sexual harassment. When called upon for our experience in the area of employment law, we will defend employers in actions initiated against them by employees where sexual discrimination is alleged. We also assist our business client in preventing and mitigating sexual harassment claims by providing sexual harassment policies and sexual harassment training.

The Family and Medical Leave Act of 1993 (29 U.S.C. § 2601, et seq.) requires that employers with 50 or more workers provide employees with up 12 weeks of unpaid leave to care for: the employees own health needs; a newborn or newly place adopted or foster child; or a seriously ill child, spouse or parent. Available damages for violations include:

• The amount of any wages, salary, employment benefits, or other compensation denied or lost to the employee because of a violation;
• Interest on these amounts calculated at the prevailing rate;
• An additional amount equal to the sum of the employee's monetary damages and interest, unless the employer proves to the satisfaction of the court that the violation was in good faith and that the employer had reasonable ground for believing that the act or omission was not a violation of the FMLA;
• Equitable relief including reinstatement and promotion;
• Reasonable attorney fees, expert witness fees, and costs.

29 U.S.C. § 2617(a)(1); C.F.R. § 825.400.

Unlike other civil rights laws the FMLA places several affirmative obligations on "covered employers." Employers must recognize the circumstances under which time taken off work by an "eligible employee" may qualify as job-protected leave, even in the absence of a medical diagnosis. Additionally, employers are required to explicitly notify employees of their rights under the law by posting the information, by publishing the information in an employee handbook or other written guidance, and by providing specific, written notice to an employee when the employee first gives notice of the need for FMLA leave. 29 C.F.R. §§ 825.300(a)(1), 825.301(b)(1). Employers must advise employees of 1) their right to take up to twelve weeks of unpaid leave for their own "serious health condition" or that of their child or parent, or for the birth, adoption or foster placement of a child; 2) their right to take leave on an intermittent basis (i.e., in increments as small as an hour, 3) the option to use sick leave and, possibly, vacation pay for leave; 4) their right to continued medical benefits; 5) any requirement to submit a medical certification, and the consequences for failing to do so; and 6) legal protection from harassment or retaliation. Finally, written notification of all of these rights must be provided to an employee within one to two business days after an employee notifies his employee his need for leave. See 29 C.F.R. §§ 825.301(b)(1), 825.300(c). Indeed, it is the employer's obligation to designate any time off as FMLA-qualifying leave within two business days, absent extenuating circumstances. 29 C.F.R. §§ 825.208(a), 825.208(b)(1). An employer who fails to do so cannot designate FMLA-qualifying leave as FMLA leave retroactively, but the employee is nonetheless entitled to the Acts' protections. 29 C.F.R. § 825.208(c).

Failure to notify employees of these rights deprives employers from challenging an employee's failure to comply with his or her responsibility to provide advance notice of his or her need for leave. 29 C.F.R. § 825.301(f). Moreover, employers who fail to provide employees with complete and effective notice about the FMLA violate the Act by interfering with the employee's right to take job-protected leave. Fry v. First Fidelity Bancorporation, 1996 U.S. Dist. LEXIS 875, *11-12, *15 (E.D. Penn. January 30, 1996); Lacopara v. Pergament Home Centers, Inc., 982 F.Supp. 213, 220 (S.D. N.Y. 1997) (citing Fry); Stubl v. T.A. Systems, Inc. 984 F.Supp. 1075, 1087 (E.D. Mich. 1997). Indeed, "the regulation include these notification provisions to ensure that the employee has all of the information he or she needs to make an educated decision." Stubl, 984 F.Supp at 1087.

With regard to notice of need for leave, the FMLA requires employees to give only minimal notice of their need for leave. To give notice of the need for leave, an employee need only give verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave. 29 C.F.R. § 825.302(c); Manuel v. Westlake Polymers Corp., 66 F.3d 758, 761 (5th Cir. 1995); George v Assoc. Stationers, 932 F.Supp. 1012, 1016 (N.D. Ohio); Brannon v. Oshkosh B'Gosh, Inc., 879 F.Supp. 1028, 1038-39, 1087 (M.D. Tenn. 1995) (employee who states she missed work because her child was sick gave sufficient notice); Hendry v. GTE North, Inc., 896 F.Supp. 816, 828 (N.D. Indiana) (employee reporting off work due to "migraine headaches" gave sufficient notice to place responsibility on employer to inquire further). Where the need for leave is unforeseeable, the employee need not expressly assert rights under the FMLA, nor even mention the FMLA, but may only state that leave is needed. 29 C.F.R § 825.303(b); Stubl v. T.A. Systems, Inc., 984 F.Supp. 1075, 1086 (E.D. Mich. 1997). The employer is expected to obtain any additional required information through informal means. 29 C.F.R. § 825.303(b); Price v. City of Fort Wayne, 117 F.3d 1022, 1026 (7th Cir. 1997); Stubl, 984 F.Supp. At 1086; Brannon, 897 F.Supp. At 1038; Hendry, 896 F.Supp. At 828.

It is important to note that the law placed the burden on the employer, not the employee, to determine whether time off, paid or unpaid, is FMLA-qualifying. The FMLA regulations specifically provide that "[i]n all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of this designation to the employee." 29 C.F.R. § 825.208(a); Price, 117 F.3d at 1026; see also Dintino v. Doubletree Hotels Corp., 1997 U.S. Dist. LEXIS 18145, at *5 (E.D. Penn. Nov. 14, 1997). Moreover, the burden rests with the employer to inquire further for additional information to ascertain whether time off qualifies under the FMLA. 29 C.F.R. § 825.302(c); Sims v. Alameda-Contra Costa Transit Dist., 2 F.Supp. 1253, 1261 (N.D. Cal. 1998); Stubl, 984 F.Supp. At 1086, Dintino, 1997 U.S. Dist. LEXIS 18145 at *5; Price, 117 F.3d at 1026. The law also puts the burden on employers to ask for medical certification if they want it and it should be noted that the FMLA does not require employees to provide medical documentation of the serious health condition that requires leave; instead the FMLA allows employers who want medical documentation of the need for leave to request it. 29 U.S.C. § 2613 (employers "may" require medical certification); 29 C.F.R. § 825.305; George, 932 F.Supp. At 1016.

Courts interpreting these notice requirements have consistently held that employees need not mention the FMLA by name in order to give their notice of their need for leave. See, e.g., Manuel, 66 F.3d at 763 (the rights and benefits granted by the FMLA should not depend upon the sophistication of the employee, as the individuals requesting FMLA leave "are workers, not lawyers"). Indeed, an employee who simply states that she missed work because her child was sick gives sufficient notice of the need for FMLA leave: "[a]fter that, it was the employer's duty to make further inquiry to determine if the leave qualified for FMLA protection." Brannon, 897 F. Supp. at 1038. This allocation rightly places the onus on covered employers, who see these situations repeatedly, to obtain the information they need, rather than on employees who are not schooled in the intricacies of these laws and who in most cases may only need to take leave once in their life.

Employees claiming that substantive FMLA benefits have been denied to them do not have to demonstrate that the employer intended to deprive them of the given benefits. Employers are instead strictly liable. See, e.g., Cross v. Southwest Recreational Industries, Inc., 17 F.Supp.2d 1362, 1368 (N.D. Georgia 1998) ("the FMLA thus imposes strict liability upon employers who deny a FMLA entitlement to qualified employees"; Kaylor v. Fannin Regional Hospital, Inc., 946 F.Supp. 988, 997 (N.D. Georgia 1996).

Unfortunately, situations arise when employers either don't understand the requirements of the FMLA or simply choose to ignore it's directives altogether. When brought to our attention, we will represent employees in actions involving suspected violations of the FMLA and have sucessfully obtained substantial settlements for client in this area. The Fair Labor Standards Act (FLSA) sets minimum wage, overtime pay, equal pay, record keeping requirements and child labor standards. As of December 2000, workers covered by the FLSA are entitled to the minimum wage of $5.15 per hour and overtime pay at time and one-half rate of pay after 40 hours of work in a workweek. States can set minimum wages higher for their state, but not lower. We provide legal representation in cases involving noncompliance or violations of the FLSA and are especially astute in cases involving issues of overtime pay.