Employment lawyer at the movies

by Constangy, Brooks, Smith & Prophete, LLP
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Employment lawyer at the movies: What if "Miracle on 34th Street" happened today? One of my favorite Christmas movies is the 1947 version of Miracle on 34th Street, but ever since I became an employment lawyer, I have not been able to watch it without thinking about how different the story would be today. For our readers who are not black-and-white movie buffs, here is a summary of the plot: A nice little old man named Kris Kringle (Edmund Gwenn) is strolling down the streets of Manhattan on Thanksgiving Day,and encounters Macy's parade Santa Claus, who is tangled up in his whip. Kris tries to teach parade Santa how to crack the whip properly and quickly realizes that parade Santa is three sheets to the wind. Kris finds the parade organizer, personnel manager Doris, a divorced "career gal" played by the lovely Maureen O'Hara, and indignantly tells her. Desperate to get a replacement Santa before the parade starts, she asks Kris to substitute. Kris does, and is a huge hit, and he's hired to be Macy's department store Santa for the Christmas shopping season.

After Kris starts work, the manager of the Toy Department tells him to promote gifts that are available at Macy's (especially the ones that aren't selling well), even if the kids want something else. Kris resists this commercialism, and actually encourages the children's mothers to go to competitor Gimbel's to get the toys they want. Doris and the toy manager are terrified that Mr. Macy will fire them for having hired Kris.

Meanwhile, Doris has reviewed Kris's employment application, and sees that he thinks he really IS Santa Claus. Although his address is a nursing home in Long Island, he says he is from the North Pole, and he lists eight reindeer as his next of kin. Doris makes up a story about last year's Santa having unexpectedly returned, and she fires Kris.

So, that was 1947. How would this story work today?

1-Parade Santa would be sent to an employee assistance program. Then he would return at the end of his 12-week job-protected leave under the Family and Medical Leave Act and would be entitled to bump Kris out of his job. Macy's would have to allow him time off work periodically to attend Alcoholics Anonymous meetings as a reasonable accommodation under the Americans with Disabilities Act. (He'd be entitled to FMLA leave for the AA meetings, too.) Even though parade Santa would be entitled to restoration to a "substantially equivalent position" after his FMLA leave, Macy's can claim that no such position is available for a Santa Claus in February, so they make him a file clerk until their "Christmas in July" promotion.

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