March 5, 1998 in Nation/World

Family Leave Act Gave Man Grounds To Sue He Was Fired For Choosing To Stay Home With Ill Wife

Ellen Forman Sun-Sentinel, South Florida
 

When Louis Hayes needed time off to care for his cancer-stricken wife, Shelly, he never thought he’d have to get involved with a federal law.

After all, his employer of 18 years, Larry Kline Wholesale Meats, had given him time to be with her during her surgery and hospital stay, with few questions asked.

But several days after Hayes asked for additional time off to care for his wife when she came home, he was told to show up on Sunday, his normal day of work, or he would be terminated, court records show. Grief stricken over his wife’s illness, Hayes told his bosses he decided to stay home.

He was fired.

“I was shocked, I was crying, I was beside myself,” Hayes said.

Several days later, his daughter-in-law told him that his decision - and his job - may be protected by the Family and Medical Leave Act, the 1993 federal law that gives workers the right to take up to 12 weeks unpaid leave per year to care for themselves or a sick relative.

Hayes got in touch with Miami labor attorney Robert Weisberg and sued. Earlier this month, a Miami jury awarded him nearly $200,000 in front pay, back pay and damages, which doubled the back pay award, for a total of $198,726.46.

Lois Kline, co-owner of Larry Kline Wholesale, said the company likely will appeal the verdict.

“We are a very caring company,” she said, noting that the firm had offered Kline his job back and gave employees time off when family members were ill.

“We didn’t fire him because he wasn’t working because his wife was sick. We fired him because he refused to work on Sundays,” she said.

Shelly, Hayes’ wife of 33 years, died in February 1997. Throughout the trial, he kept her photo in front of him on the court desk.

Today, he lives with his daughter Ricki in the house his wife had longed for but only briefly lived in.

“Instead of her worrying about her cancer, she would speak to friends on the phone for 10 minutes about her cancer, and for 20 minutes, she’d talk about how they fired me, worrying about where a 57-year-old man would find a job,” he said. “She was more worried about me than fighting the cancer.”

Hayes is now unemployed. While his job at Louis Kline meats was administrative, the one that followed involved lifting, and he couldn’t do it.

“What happened to Lou underscores why there’s a need for a law like the Family and Medical Leave Act,” Weisberg said.

While the number of labor discrimination lawsuits has grown, litigation under the family act is still rare, lawyers say.

“(Hayes) is the first decision I’m aware of in which front pay has actually been awarded,” said Diane Heim, a Department of Labor attorney in Washington who works with the act. The front pay award represents what Hayes potentially lost in future earnings when he had to take a lesser-paying job after leaving the wholesale meat firm.

About two-thirds of the U.S. labor force, including private and public sector employees, work for employers covered by the family leave act, according to a 1996 government study of the act.

The act has stirred its share of controversy. Some employers say it’s a pain to administer, and it’s often used to tend to less-than-urgent matters. Another survey by Buck Consultants in 1996 found that one out of every three employers experienced an increase in the amount of leave time employees were taking as a result of the act.

Yet the 1996 Labor Department commission survey found that overall, use of the law is fairly low, with only 2 percent of all covered employees taking leave under the act. Few workers can afford to go without their paycheck for very long.

Hayes’ reason for taking the leave puts him in the majority. Almost 80 percent of those who take leave do so to care for a seriously ill child, spouse or parent. But at age 57, Hayes was older than the typical leave-taker, who’s most typically between 25 and 34.

Attorneys say that the act is rarely taken to court. Family leave matters are typically settled with a phone call by an attorney to an employer to remind him of the client’s right to take leave under the act.

While knowledge of the law is widespread, neither Hayes nor his employer had known anything about the Family and Medical Leave Act before the dispute unfolded. But according to Weisberg, Hayes’ attorney, the law applies whether you know about it or not.

“You only need to ask for leave that would qualify under the act,” he said. “There’s no burden on the employee to identify the provisions of the law in order to get the protections.”


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