FMLA: Enforcing Your Rights Phil Cohen - LaborLab

FMLA: Enforcing Your Rights Phil Cohen

FMLA: Enforcing Your Rights Phil Cohen

Phil Cohen is one of the most effective and celebrated organizers to have ever set foot in the south -- a region of the United States not necessarily known for being sympathetic to union organizers. Cohen's most recent book - Fighting Union Busters in a Carolina Carpet Mill: An Organizer's Memoir - is riveting and a must read, especially for anyone who has been part of an NLRB fight or is interested in learning more about how working people can push back on corporate power. It's for these reasons we're so excited to offer the following workshop prepared and presented by Phil Cohen: FMLA: Enforcing your Rights. And if you haven't already, be sure to check out Phil's first workshop focused on your right under the NLRA.

Phil Cohen's FMLA: Enforcing Your Rights workshop can be listened to right here:

A transcript of the workshop follows:

My name is Phil Cohen. I’m Special Projects Coordinator for Workers United/SEIU with 30 years in the field.

A union’s job doesn’t stop with negotiating and enforcing contracts. We also educate workers about their rights under state and federal law, and represent them when those rights are violated.

You might wonder why this is necessary. It’s because employers don’t want you to understand your rights, and neither does the government. The information sheets about those rights that management is required to post are vague and leave out the most important parts.

A prime example of this is the Family and Medical Leave Act of 1993, referred to as FMLA. Most workers are aware that FMLA requires employers to grant 12 weeks of unpaid leave for long term illness and pregnancy, without penalizing attendance policies. If management had their way, your understanding would be limited to this. But there’s SO MUCH MORE!

  • Intermittent Leave: If you or an immediate family member have an ongoing medical issue that requires you to miss work every now and then, it legally can’t be counted against you under the attendance policy. Common examples include migraine headaches, anxiety disorders, diabetes and many others. But there’s a procedure to follow if you want to enforce this right:
    • Your doctor must document the condition
    • The doctor (or nurse) must fill out an FMLA form, indicating when your condition began and that it requires intermittent leave.
    • You can get FMLA forms from your HR Department; download them online, or if possible, from the union.
    • Once intermittent leave is set up, all you have to do is call work and say, I’m taking FMLA today because of whatever your condition (or family member’s condition) happens to be.
    • You can even use intermittent leave to come in late or leave early. You can see why companies hate it and want to keep you in the dark.
    • However, my biggest frustration as a union rep hasn’t been fighting with management, but with doctors who don’t bother to fill out FMLA forms correctly. These Ivy League brats don’t understand what it means to have one’s job at stake. I once had to threaten a doctor with 100 angry workers picketing his office the next morning in front of TV cameras before he got it right.
    • So, if you don’t have a union, you’ll need to stay on top of this yourself. Get pushy if necessary. You’re a customer and the doctor wants your business. If you lose your job, you’ll lose the insurance that pays him.
  • FMLA is federal law, enforced by the Department of Labor. A union can represent you if management fails to honor your legal rights. You can file a complaint yourself, but will get much better results with representation.
  • FMLA isn’t limited to long term or ongoing conditions. If you’re absent for 3 or more consecutive work days because you or a child had the flu, pneumonia or other common illness, you’ll qualify for FMLA and get a pass under the attendance policy……if you do the following:
    • Document a doctor visit during the period of illness (Sometimes a 2nd consultation is required, but this can be by phone.)
    • Document that you received medication
    • And once again, have the doctor’s office provide documentation on an FMLA form.
  • There are two important ground rules to keep in mind:
    • In order to be eligible for FMLA, you must have worked for your employer for at least one year, and worked 1,250 hours in the past 12 months.
    • In order for family members to qualify, you have to make a credible claim that you’re responsible for their care, which usually means they live with you.
  • Here’s another thing about FMLA that management hates to be called on: Under the law, they are responsible for understanding FMLA and informing workers when they should apply. Of course, I’ve never seen management take that initiative when it comes to intermittent or short term leave. What that means is:
    • FMLA can be retroactive!
      • HERE ARE SOME EXAMPLES: You’re missing a couple of days a month because of migraine headaches. Perhaps you’re periodically leaving work early to take a sick child to the doctor. You casually share this with your supervisor
      • It becomes his job to inform you that you might qualify for FMLA, and to pass the word on to Human Resources, so they can give you the form.
      • Naturally, this doesn’t happen. You end up one day short of getting fired under the attendance policy. Maybe you do get fired. But once the supervisor’s prior knowledge of your situation is demonstrated, all of your attendance violations related to the condition in question legally have to be removed.

As you can see, some of this is complicated. It provides one more snapshot of why unions are so important. Management in nonunion plants are experts at confusing workers and making them feel like idiots when it comes to their legal rights. A good union rep won’t let them get away with it.

It violates federal law for management to threaten or discipline workers for enforcing their FMLA rights.

In nonunion plants, seriously ill workers are only entitled to 12 weeks of unpaid medical leave per year, and then the company can still fire them. Union contracts guarantee at least a year of leave when necessary.

But to give you some idea where American workers stand in the global scheme of things, workers in Western Europe (where nearly everyone is in a union) often get a year of paid medical leave.

Does that make you angry? Good! Get involved in the labor movement.

As I mentioned at the beginning, in addition to being a union organizer, I’m an author. If you’d like to read a hard core, real-life drama about how the issues we reviewed today were dealt with during a campaign I recently directed… that brought a Fortune 500 company to its knees…..check out my new book: Fighting Union Busters in a Carolina Carpet Mill, released by McFarland & Company.

In the process of defeating a corporate conspiracy to bust a union local, I became involved with and won major FMLA cases. The book demonstrates how all this played out in the real world. The best place to get it is my website, I’m passing on my 40% author’s discount to working people, making it available for only $11.99, and throwing in a free CD of working class music.

I’d like to thank Mark Gevaart, host of My Labor Radio, for his recording and production services. You can listen to his outstanding podcasts by following the links at

In our next episode of Enforcing Your Rights, we’re going to discuss another critical are of employment law: workers comp.

We’ve provided a lot to think about today, so we’re going to ease you out with a bluesy track from the CD being offered with the book. It’s called My Train.