The Family and Medical Leave Act, in 29 U.S.C. § 2612(a)(1) provides:  

  

[A]n eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following: … (Because of the employee’s own serious health condition) (or)  In order to care for the spouse, or a son or daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition. …   

29 U.S.C. §2611(11) defines “serious health condition” as including 

   

“an illness, injury, impairment, or physical or mental condition that involves – –  

  

…   

(B) continuing treatment by a health care provider.”   

    The employee must give 30 days notice of the leave request, unless the date of the treatment under the circumstances does not allow that, in which case the employee must give as much notice “as practicable.”   

    The request does not have to be written, although in many cases the employer will have forms for the employee to fill out.  The request does not have to specify it is for “FMLA,” it is  sufficient if the information provided makes the employer aware that the condition probably fits within FMLA. An employer’s internal procedural  requirements cannot be more strict than required  by FMLA.   

   The employee does not have to provide medical documentation unless it is requested by the employer, in which case the employee clearly must comply with that request.   It is the employer’s duty to followup with any request for additional documentation.  Clearly, an FMLA request can be made, and leave taken, without necessarily providing any medical documentation at that point.  Documentation can take place later.    

   The twelve weeks of FMLA leave to which the employee is entitled may be taken intermittently.   

   Further, the leave can be taken in the form of a reduced work schedule.   

A deferred prosecution is an option for anyone charged with DUI or any other gross misdemeanor, or misdemeanor, when the conduct is the result of a serious alcohol or substance abuse problem.

Ordinarily, you do not want to go on a deferred prosecution if it is your first DUI charge ever, especially if your BAC reading is under .15.   Why?  Because the consequences of a sentence for a first DUI, especially if the State will amend the charge to something less serious, could be less onerous than those of a deferred prosecution program.

The main advantages of entering deferred prosecution are that you do not get convicted of the offense, and do not receive penalties. You will however, have to comply with a rigorous treatment program for two years.   And the treatment is at your own expense, unless you can get it covered under your insurance or apply for state funding.   But you will not have your license suspended if you go on deferred prosecution, nor will you serve jail time.

The disadvantages are that as a condition of being granted deferred prosecution, you must sign a stipulation that if you violate the conditions of the program, and get “revoked,” then you will not receive a jury trial or  most of the rights that go with it.

Instead, the Court will simply review the police report and make a determination of guilty or not guilty based on that, without live testimony.   And, you would not have taken a deferred program, if you thought the evidence against you was weak, you would have gone to trial.

Once you complete your two years of treatment, your are still on probation for five years, and must not commit any similar offenses during that time.  If you meet all the requirements, then the charge is dismissed.

In the State of Washington, you can only take a deferred prosecution once in a lifetime.

Do not go on a deferred prosecution unless you acknowledge you have a serious alcohol or substance abuse problem, and are committed to  complete  abstinence, and completing  your treatment faithfully.

If you are more than a first time offender, and you need the treatment, and you follow the requirements, it may be the best thing to happen to you.

One type of wrongful termination case arises when  the employer’s conduct violating a statute that specifically gives the employee the right to sue when for a violation of the law,  such as Title VII of the Civil Rights Act, where there has been discrimination by sex or race.

But when there is no specific legal violation of a statute that sets forth a remedy for the employee, then under  case law of  the State of  Washington, there may still be a case of wrongful termination based on violation of “public policy.”

Washington courts have generally recognized the public policy exception when an employer terminates an employee as a result of his or her

1) refusal to commit an illegal act,

(2) performance of a public duty or obligation,

(3) exercise of a legal right or privilege, or

(4) in retaliation for reporting employer misconduct.

Danny v. Laidlaw Transit Services, Inc. 165
Wn.2d 200, 207-208, 193 P.3d 128, 131 – 132
(2008).
 
Examples of terminations that violate public policy doctrine are when an armored car driver got out of the vehicle, violating  his employer’s policy, to aid  a crime victim, and was fired. Another example was where an employer fired a woman for missing work due to domestic violence.

Call William Edelblute  Attorney at Law, (509)
928-3711 or bill@edellaw.com to see if your
circumstances could fit under the “public policy”
exception to the “at-will” doctrine.

Unemployment Compensation

January 6, 2010

Question:I have just been terminated from my employment.

How do  I know whether I am eligible for unemployment based on the reason the employer is giving for discharging me?

Answer: Under Washington State law, you will eligible for unemployment compensation benefits if your employer fired you  because of business reasons, such as staff downsizing, and even if the employer says you had poor performance or were negligent in some way.

You will not be eligible if you committed “misconduct.”

Misconduct means an intentional or wilful violation of a clear rule of the employer of which you were aware, or which is obvious, such as the prohibition on theft or dishonesty which impacts your employer’s interests.

If you have merely made a mistake, or there is a misunderstanding, the employer may try to label  it as “misconduct” to deny you unemployment comp, and save themselves premium increases.

The burden is on the employer to show misconduct.  If the Employment Security Department denies your benefits on the basis of “misconduct,” contact an employment lawyer such as William Edelblute, about an appeal.  At the administrative appeal hearing, the burden will be on the employer to show that you wilfully violated a rule.   I win most appeals for my clients  based on “misconduct” issues because often the employer is exaggerating what is poor performance, negligence, or a misunderstanding into “misconduct.”

The law governing this issue is  found in RCW 50.04.294(1) and RCW 50.20.066.