Employee A requested leave due to a birth. The employee has been with the company for more than a 12 month period. The employee took 11 weeks of leave and is requesting to return to his previous job. The company is small but employs more than 50 employees.
Based on the Family and Medical Leave Act (FMLA) if a company employs more than 50 employees, then the company should provide up to 12 weeks of leave for every 12 month period. The employee must have worked for the company a minimum of 12 months to qualify for the FMLA. The 12 weeks can be approved for several reasons including, a new child in the family (birth, adoption, foster care, etc…), caring ...view middle of the document...
The ADEA protects against discrimination in hiring, promotions, wages, or termination/layoffs. Another aspect is that the ADEA does not protect someone younger being over looked in favor of someone older.
Taking into account only the information provided in the situation, the company is in violation of the ADEA. There is documented evidence based on the annual performance reviews of both parties that; employee B should have received the promotion over the co-worker. If both employees had the same level of performance the case might go either way but as the co-worker did not have the same level or higher performance there is no viable reason for the promotion to go to the co-worker.
Outside of the provided situation there are other factors that might come into play making this a non-violation of the ADEA. A full audit of the position would need to be conducted by Human Resources thus allowing a determination on the risk the position has for the employee, other employees, or even the public. If the promotion was determined to be a high risk position this would result in a non-violation. For example, if employee B was a Train Conductor, it could be found that based on the age and the risk to the public, if the employee was unable to perform the job properly for even a moment then the promotion should go to someone else that is younger.
Applicant C is physically disabled and uses a wheelchair. The position applied for required ease of mobility and ability to use existing equipment in the building, like the elevator to access other floors. ...