TO: Vice President, Company X FROM: Jeff Lindsey, Director Human Resources, Company X DATE: December 27, 2011 SUBJECT: Determination of potential HR Violations This will serve as a memorandum to indicate status on 3 different types of HR events and whether federal laws have been violated. Summary A: With the provisions of the Family Medical Leave Act of 1993 to serve as a guide, it is clear there have been no violations of federal law. The following will explain how the provisions of the FMLA apply to this situation. But first, here is the link to the compliance poster that requires all FMLA covered employers to post the text of this notice. U.S. Wage and Hour Division. (January 2009). WHD publication 1420. Employee Rights and Responsibilities. Retrieved December 27, 2011 from http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf Employee A has been with Company X for two years. Eligibility requirements state that at least 12 months of employment are required and in this case the employee has 24 months of employment and is eligible based on this specific requirement. Employee A's spouse gave birth prematurely to twins. Eligibility requirements state the birth of a son or daughter, or in this case twins, is an eligible event to qualify for FMLA. He requested leave to be with his spouse, which was granted. This also is a qualifying requirement to be eligible for FMLA. Employee A has been on leave for 11 weeks, and has asked to return to work. The employee can take up to 12 weeks of FMLA so 11 weeks is within guidelines. And to be paid the withheld salary from his 11-week leave. This is where the misunderstanding begins. While the company is legally required to hold the job for the employee and maintain the health benefits for the employee, the company is not responsible to provide paid leave during this time period. The previous department manager left the company during Employee As leave. This is not relevant to this situation. The new manager has agreed to Employee As return to the previous job, at the previous rate of pay. This is in compliance with Federal Law under requirements of the FMLA. But the manager has denied the request for the 11 weeks of withheld

salary. While it is up to the discretion of the employer to allow accrued paid leave for both vacation and sick time to be taken in conjunction with FMLA, it is not the responsibility of the employer to provide compensation to the employee for that time taken beyond payment for continuation of medical benefits. To provide paid leave for the employee while on FMLA is not the responsibility of the employer. Summary B: With the provisions of the Age Discrimination in Employment Act of 1967 to serve as a guide, it is clear that the company is in violation of federal law. The following will explain how the provisions of the ADEA apply to this situation. Employee B is 68 years old and has been with Company X for 42 years. The Age Discrimination in Employment Act (ADEA) protects employees who are 40 years of age or older so the ADEA is applicable on this requirement. The ADEA prohibits an employer from discriminating against a person because of their age with regard to employment, layoff, promotion, compensation, assignments or job training. Under the ADEA it is unlawful to discriminate against a person because of their age. The ADEA is applicable in that it appears wrongdoing was done by the company, in that a lower qualified candidate was hired on what appears to be related to the age of the applicants. During the annual performance review last month, it was determined that Employee B was doing above average work in the department. With a rating of this caliber the employee would be eligible for a promotion. Employee B was denied a promotion due to age. This is a clear violation of the ADEA. Any number of reasons could have been provided as to why the applicant was passed up for promotion. In this particular case too much information was provided to the applicant and has exposed the company to risk of lawsuit by the applicant as the company is outside of compliance with the Age Discrimination Employment Act. A co-worker given the promotion, who is 32 years old, received a performance review of adequate. This further reinforces the applicants case in that a younger employee with a lower performance rating was awarded the position. Had they been at least on an equal review rating of above average it would have been open to interpretation on who was the better qualified candidate. In this case however it further reinforces the claim that the older candidate was discriminated against.

Summary C: With the provisions of the Age Discrimination Act of 1967 to serve as a guide, it is clear the company is in violation of federal law. The following will explain how the provisions of the ADA apply to this situation.

Applicant C requires the use of a wheelchair to move about due to paralysis of both legs. This clearly established that the applicant is covered under guidelines from the ADA. The position Applicant C applied for requires movement about the entire company offices, including using the elevator to access any of the seven floors in the headquarters building. This is relevant in that mobility around the building is clearly a key component for performing the duties and job functions of the position. In order for Applicant C to make use of the elevators, the key pads in two of the four elevator cars would have to be lowered four inches to be accessible. While the keypads in two of the elevators are unreachable, there still remain two elevators that do have reachable keypads and this would allow for mobility of the applicant to the required areas. Under the ADA, reasonable accommodation may be requested by any employee that is having difficulty meeting demands at work based on a valid medical reason such as the applicant in this case having access to buttons on an elevator. It seems the cost of retrofitting the other 2 elevators would place undue hardship on the company especially given that two of the four elevators are handicap accessible. Applicant C was denied employment, and was told the denial was because his/her employment would cause undue hardship on Company X. This is a clear violation of the ADA. Any number of reasons could have been provided as to why the applicant was passed up for employment. While it is possible that the company can claim that undue hardship would be caused by meeting the required needs of the applicant for employment, it is not relevant as applies to this particular situation. Retrofitting the other two elevators, providing an alternate means of pushing the buttons such as a two foot long stick, or some other means such as someone to assist the applicant by pushing the buttons for them would all be reasonable means to accommodate a person with special needs. According to the law, the company would not have been subject to undue hardship as other reasonable accommodations could be made. In this particular case too much information was provided to the applicant as they were told they were denied employment due to undue hardship rather than just a flat statement that a another candidate with better qualifications was found. This type of statement has exposed the company to risk of lawsuit by the applicant as the company is outside of compliance with the Americans with Disabilities Act.

REFERENCES:

1. U.S. Wage and Hour Division. (January 2009). Employee Rights and Responsibilities. In WHD publication 1420. Retrieved December 27, 2011 from http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf