One of the key provisions of the Family Medical Leave Act is that, in general, the employer is not responsible for the cost of the employee leaving, in terms of pay. While an “employee may elect, or an employer may require the employee to substitute any of the accord paid vacation leave, personal leave, or medical or sick leave” (Family and Medical Leave Act of 1993, § 102, 2006), the employer is otherwise not obligated to pay the employee straight pay, as the leave is considered, as stated under sub-section C of Section 102 of the FMLA to be “unpaid leave.” It’s important to distinguish then, in the given situation, if the employee intends to, or if the employer requires, that the employee use any pools of benefit time, such as vacation or personal time. Specifically: when Employee A states that he’s asking “to be paid the withheld salary from his 11-week leave” then if he means his vacation, personal, sick, or medical leave from a bank of time, then he’s within his rights under the FMLA.
If so, then the manager’s denial of the request to be paid any withheld salary would be a violation of the FMLA. The given situation, however, isn’t specific, so we can assume that “salary” is defined in the situation only as “straight pay.” If so, then since the new manager has agreed to Employee A’s return to the previous job, at the previous rate of pay, there is no violation of the FMLA (Family and Medical Leave Act of 1993, § 102, subsection d, 2006).
Employee B, due to his or her age and position, is considered a protected employee under The Age Discrimination in Employment Act of 1967 (The Age Discrimination in Employment Act of 1967, § 12, 1967). He or she is 68 years old and as such falls under subsection A of the Age Limits section of the act, but because he or she is not a “bona fide executive or high policymaker” he or she is not excluded or eligible for forced retirement as would be allowed under subsection C. It’s important to note that the given situation specifically states that Employee B was denied a promotion, which is a violation as defined under Section 4 of the Age Discrimination in Employment Act, which states, “it shall be unlawful for an employer to limit in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age (The Age Discrimination in Employment Act of 1967, § 4, 1967). There could be an argument in the employer’s favor of the action if the employee that was promoted were 40 years old or older, however, since the promoted employee was only 32 years old, this proves that a violation occurred, as the promoted employee is not also protected under the Age Discrimination in Employment Act.
When reviewing Situation C it’s important to clearly understand, in the context of the Americans with Disabilities Act, both the intention of the Act as well as the definitions of both...