Archives: employment

One of the lesser joys of the domestic practice is presiding over fights over personal property. My professional low point came twenty years ago while with another firm.  My opponent that day was my current law partner David Rasner.  In one afternoon we thought we settled a break up of a short term marriage where the couple had made a small fortune on the sale of their house. We were down to the personal property when both parties decided they could not each part with a particular hand held vacuum cleaner.  That dispute almost killed a deal to divide almost $200,000 in gains on their home sale.

Equally galling are fights over cars; especially old cars without any real useful future.  Folks love to park them in front of their separated spouse’s house and throw the keys in the mailbox.  Even better, cancel the insurance since the car is not really drivable anyway.

This game is fraught with peril.  The car is registered in both parties names and you park it in front of Evil Spouse’s apartment.  A child skateboarding nearby slams into the car or severely cuts himself while playing with the rusted fender. The kid’s lawyer asserts the car was in the lane of traffic or that the rusty fender was an attractive nuisance.  Who will have to hire the lawyer to defend you?  You will because the car has no insurance.

Second problem: One of the things the Motor Vehicle Financial Responsibility Law requires is that you buy something called first party benefits.  Essentially this is medical insurance for you if you have an accident.  You must buy this coverage in some amount and pay for it.  Most people don’t think about it because they have health insurance through employment.  But if you are unemployed, your first party benefits may be the only coverage you have.  And if you have a registered car that is uninsured in Pennsylvania, you lose your first party coverage even though you paid for it.  And it doesn’t matter that you were injured in a car that was insured.  The mere fact that you have an uninsured car is a forfeiture of your first party coverage.

The lesson is that car fights are expensive.  It costs lawyer fees in your divorce and could yield a property or personal injury claim for which you have no coverage.  Things like this can even make rich people poor in a hurry.

(Image: http://tennesseelabortalk.com)

While this topic of this blog post is not exactly what this blog typically covers, I frequently find that litigation in another areas of law either impacts or illuminates an issue dealt with by our family law clients.  One such example would be a recent decision at the Eastern District of Pennsylvania interpreting various terms of the Family and Medical Leave Act (“FMLA”).  In that case, a mother had to take off time from work in order to find a new daycare for her autistic daughter who has significant developmental disorders and physical impairments.  Her employer, Reading Hospital Medical Center, opposed the use of FMLA leave for this purpose.  FMLA leave is designed to allow an individual to take time off from work to address family medical issues without the risk of losing their job.

 

The Honorable Timothy J. Savage of the Eastern District looked to the Americans with Disabilities Act (“ADA”) to help identify whether or not the mother’s daughter had impairments which would cause her to fall within the “serious health condition” category of the FMLA.  In doing so, there was also the interpretation of whether the change in daycare constituted “changes in care” as it is contemplated by FMLA regulations.  As drafted, the regulations are silent as to whether moving from one non-medical facility to another constitutes a “change in care,” as it would otherwise be considered when moving someone to a facility offering medical treatment.

 

Judge Savage’s opinion would appear to expand the definitions of some important FMLA terms, but Reading Hospital Medical Center disagrees and does not consider the holding to be a significant expansion of FMLA regulations; they believe Judge Savage’s opinion addresses their narrow set of facts and does not have a broader application beyond this case.  Nevertheless, the holding seems to make a persuasive argument that the regulations now include changes of care for a family member with a serious medical condition, even if the change of care relates to a non-medical facility.  The designation of the medical condition of the individual will dictate whether the time off to facilitate a change in care falls within the protections of the FMLA.

 

 The application of this case to family law is that informs both attorneys and clients as to how much flexibility they have to make appropriate child care arrangements for a special needs child during work hours.  This could be extremely important to a client with a disabled child who has either a limited support network or a difficult (or even non-existent) custodial arrangement with the other parent. Maintaining consistent child care can be challenging under the best of circumstances, but when medical and developmental issues of a child are factored in, it makes a difficult situation that much harder.   For a single parent, child care coverage means maintaining employment and stability for the child; it would seem like Judge Savage’s opinion reasonably fits into the purpose behind the FMLA.

 

For more information about other employment discrimination issues, go to Fox Rothschild’s Employment Discrimination blog written by Richard Cohen and Christina Stoneburner of our New York and Roseland, NJ offices, respectively. 

 

The case involved is Wegelin v. Reading Hospital Medical Center.   An article on the case was written by Saranac Hale Spencer (sspencer@alm.com) and published in the December 4, 2012 issue of the Legal Intelligencer (Vol. 246, No. 108).