FMLA FAQ: Can an Employer Deny FMLA Leave to An Employee Who Is Not Yet Eligible to Take Leave?

Posted by Jeff Nowak on January 19, 2012

woman_pregnant_child_stomach_brother_sister.jpgQ: Can an Employer Deny FMLA Leave to An Employee Who Is Not Yet Eligible to Take Leave?

A.  It depends, particularly after a federal appellate court handed down a ruling on this very issue last week.

The underlying story is straightforward: On October 5, 2008, Kathryn Pereda began working for Brookdale, which operates senior living facilities in Florida.  In June 2009, Pereda informed her employer that she was pregnant and would need FMLA leave after the birth of her child in November 2009.  However, in September 2009, about 11 months after her hire, Brookdale terminated Pereda's employment.

Pereda thereafter filed suit, claiming that the employer violated the Family and Medical Leave Act when it: 1) denied her FMLA leave (interference); and 2) terminated her for exercising her right to take FMLA leave (retaliation). 

The Court grappled with whether an employee who is not yet eligible for leave (because she had not worked for Brookdale for the requisite 12 months) could advance an FMLA interference claim.  For the Court, the answer was quite clear: Yes, she can.  In answering the question, the Court first looked to the regulation regarding eligibility: 

"The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start." 29 C.F.R. § 825.110(d).  

So, the answer is easy enough: when assessing an employee's eligibility under the FMLA, employers should make the calculation not as of the date of the request, but as of the date the leave is to begin.  If an employer terminates the employee “in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible,” the employee could advance an FMLA interference claim.  Pereda v. Brookdale Senior Living Communities, Inc. 

Insights for Employers

There are several takeaways for employers on this issue: 

  1. Keep in mind that the FMLA requires a 30-day notice for foreseeable leave.  This is particularly true for the birth of a child.  An employee who reports a future need for FMLA leave (even though they are not yet eligible) likely will be protected by the FMLA if the employee would be eligible by the time the leave is to begin.
  2. A gentle reminder -- don't treat your employee differently after the leave request has been made.  According to Pereda above, she claims to have been harassed, disciplined for attending prenatal appointments (an FMLA no-no!), and inappropriately placed on a performance improvement plan.  Of course, an employer can and should insist that their employees meet legitimate performance expectations, but retaliating against the employee after she requests leave not only violates the FMLA, it results in a dejected employee who will have no desire to work for you again.
  3. Note: If an employer grants leave before the employee becomes eligible under the FMLA, any leave taken in the first year cannot be counted against the employee's FMLA allotment.  See my prior post on this subject.
  4. Eric Meyer of The Employer Handbook points out several other lessons from Pereda case that are worth reviewing.

Manager's Loose Lips Sinks Employer's Chances of Dismissing FMLA Claim

Posted by Jeff Nowak on November 15, 2011

Loose lips.jpgWhen making difficult decisions about eliminating jobs, senior management surely may disagree as to "who" is cut and how it's done.  However, after the decision is made, it is critical that management collectively support the decision and refrain from public dissension.  When that dissension is shared publicly or with the affected employee, it can spell disaster. 

Take a situation involving Laura Makowski.  Makowski was employed as Marketing Director by SmithAmundsen LLC, a Chicago-based law firm.  In December 2007, during the massive economic downturn, Makowski took maternity leave.  One month later, during a firm retreat in January 2008, the firm's executive team decided to eliminate the positions held by Makowski as well as the firm's IT Director.  The Executive Committee charged Molly O'Gara, Director of Human Resources, with the task of consulting outside counsel on the termination decision.  O'Gara considered herself the "boss" with respect to HR policies and compliance and was regularly consulted on termination decisions. 

According to Makowski, when she returned to pick up her belongings in early February after being terminated, O'Gara met her at the elevator.  Shockingly, Makowski claims that O'Gara told her that she "was let go because of the fact that [Makowski] was pregnant and took medical leave" and that Makowski was one of several at the firm who were let go because they were pregnant or took medical leave.  O'Gara allegedly didn't stop there, suggesting that Makowski should consult with an attorney, since there "might be the possibility of a class action."

Ouch.

You know how the rest of this story goes.  Last week, a federal appellate court in Chicago ruled that Makowski's FMLA interference and retaliation claims (as well as a pregnancy discrimination claim) would not be dismissed, and that a jury must determine whether O'Gara's comments help establish that the firm interfered with Makowski's FMLA leave and ultimately terminated her because of her pregnancy and the use of FMLA leave.  Makowski v. SmithAmundsen (pdf)

Insights for Employers

A few lessons to be learned:

  1. Whenever possible, involve senior management in RIFs and other employment terminations.  This should include your senior HR executive.  It is unclear from the case whether O'Gara was involved in the actual decision to terminate (or whether her sole task was obtaining employment counsel's blessing).  However, when senior executives are not consulted on significant business decisions, it can breed resentment.  Resentment manifests itself in a variety of ways, such as a manager who blows off steam about the decision in public or to the affected employee.
  2. Loose lips sink ships.  After the debate has ceased and management has made the personnel decision, it is critical that any dissenters support the decision of the whole or that of the decisionmaker.  The public front should be collective, and the message consistent.  Clearly, we don't know all of the facts at issue in Makowski's situation.  However, if O'Gara's comments are true, she obviously allowed her personal opinion to become public.  In turn, it created a tremendous risk of liability for the firm, a decision that now will be placed in the precarious hands of a jury.
  3. A no-brainer reminder to HR professionals: Be exceedingly careful when discussing with the employee the reasons for his/her termination, as this conversation will be dissected over and over again and used by the employee's attorney as evidence of alleged discrimination or retaliation.  Whenever possible, seek the guidance of employment counsel in framing the reasons communicated to the employee so that you ultimately reduce the risk of liability.   

Supervisor's Inadvisable Email Creates Basis for FMLA Claim

Posted by Jeff Nowak on October 31, 2011

RIF.jpgFile this in your "Don't Do This When Conducting a RIF" folder.  As highlighted by the folks at the Atlanta Employment Lawyer Blog, employers should be wary of eliminating the position of an employee who announces days earlier that he will need several weeks off for surgery.  When the evidence shows that this employee was not targeted for the layoff before he requested FMLA leave, but only after, it may well be enough to allow him to present his claims to a jury.

The Facts

William Shaffer was the Director of Leadership Communications for the American Medical Association (AMA).  In 2008, when the economic downturn was taking shape, the AMA cut internal budgets.  When initial cutbacks were not enough, the AMA slated various staff positions for elimination.  Shaffer's boss indicated that it would be an "obvious choice" to eliminate the position of another employee in Shaffer's Department because this employee's duties had changed significantly and, in any event, the AMA had stopped work on one of his core campaigns.  When Shaffer's boss was asked on October 28 whether Shaffer should be slated for layoff, he did not believe cutting additional positions was necessary, including Shaffer's position.  The decision appeared to make sense. 

However, the boss suddenly had a changed of heart.  On November 20, Shaffer asked for FMLA leave for knee replacement surgery.  Four to six weeks, to be exact.  By November 30, Shaffer's supervisor changed his tune, recommending now that Shaffer's position be eliminated.  Specifically, he stated in an email to his superiors: "The team is already preparing for Bill's short-term leave in January, so his departure should not have any immediate negative impact."  Ugh.   

Not surprisingly, Shaffer filed suit shortly after his termination.

The Court's Ruling

In reversing the decision to grant summary judgment to the employer, the Seventh Circuit Court of Appeals in Shaffer v. American Medical Association held that the supervisor’s "11th hour" decision to terminate Shaffer, as well as the inconsistent decisionmaking as documented (e.g., shredded handwritten notes, notes that were dated months before they were written), could have created a "paper trail" that acted as a cover up to unlawful conduct.  As a result, the court decided that a jury should hear Shaffer's FMLA retaliation claim.

Insights for Employers

The advice might seem a bit obvious here, so let me put it succinctly: 1) When you shift course and decide to terminate an individual not initially slated for layoff (and especially after they request protected leave), your thought process and documentation must be precise and well reasoned; and 2) when you actually document, be consistent, thorough and careful.  What clearly was convincing to the Court was the supervisor's email -- a missive that specifically referenced Shaffer’s request for FMLA leave.  Although Shaffer’s request for leave may have had nothing to do with his actual layoff, the content of the email put Shaffer in a good position to argue that a jury should decide whether the need for leave was a motivating factor in the decision to eliminate the position.  This is yet another example of the importance of FMLA training for supervisors and employees who manage employees with medical conditions.

Failing to Return Employee's Phone Calls May Be FMLA Retaliation

Posted by Jeff Nowak on September 28, 2011

Phone calls.jpgDuring a webinar I conducted last month with the EEOC's John Hendrickson regarding "leave" as a reasonable accommodation under the ADA, I pleaded with, begged, and cajoled employers to maintain regular contact with an employee while he or she is on FMLA leave.  Here is another reason to heed this advice - failing to do so may increase your risk of an FMLA retaliation claim.

As Eric Meyer reports in The Employer Handbook blog, a federal court in Pennsylvania found that an employer's failure to return an employee's telephone calls while she was on FMLA leave is evidence of retaliation.  In Hofferica v. St. Mary Medical Center, the plaintiff was a registered nurse who was approved for intermittent FMLA leave for an unusual medical condition that involved tinnitus, hearing loss and vertigo. 

In September 2008, she took extended FMLA leave to undergo treatment for the condition.  She expected to return by November 6, 2008.  The employee claimed that, during her leave, she and her husband regularly provided her direct supervisor with leave updates.  However, her supervisor often failed to return the calls.  In early November, she provided a return to work certification clearing her return for November 13.  She also contacted her supervisor to ask for a "modest" extension through November 13, but the supervisor again did not return the call.  Instead, the Medical Center sent the employee a letter informing her that her employment had been terminated because she failed to return to work on November 6 when her FMLA leave allotment had been exhausted.

A really bad move.

Not surprisingly, the employee filed suit claiming, among other things, that the Medical Center retaliated against her for taking FMLA leave.  This claim will now make its way to a jury.  In refusing to dismiss the employee's retaliation claim, the trial court found that the supervisor's failure to return phone calls was evidence of "an antagonistic attitude toward the employee, particularly where - as here - such refusal began after the employee initiated FMLA leave, and continued despite regular communications from the employee."  As such, it could be used as evidence of retaliation.  A scary result for employers, but the decision provides plenty of lessons for employers.

Insights for Employers

  1. As this decision makes clear, it is imperative that employers maintain contact with employees on FMLA leave.  Why go weeks or months without talking with an employee on leave?  If you are communicating with them for the first time on the eve of their return to work, you are only inviting trouble.  Your FMLA policy and forms should make clear that you expect the employee to check in at appropriate intervals, and that you will be contacting them, too!   
  2. In last month's webinar, we covered a fact pattern very similar to this case to help employers understand their ADA obligations when an employee's FMLA leave expires.  Where FMLA ends, employers must be prepared to analyze requests for additional leave under the parameters of the ADA.  Click here for more guidance on this point.
  3. Finally, don't let the supervisor off the hook -- issue discipline if necessary (if they failed to manage this situation properly) and provide additional training.  In Hofferica's case, it appears as though the supervisor completely dropped the ball in (not) communicating with the employee.  Training on FMLA responsibilities is critical.  And for this supervisor, might some additional training on telephone etiquette be in order?

Employee Who Abused FMLA Leave Around the Holidays Properly Terminated

Posted by Jeff Nowak on August 26, 2011

coal-in-stocking.jpgEmployers often complain that they see an uptick in the use of sick leave and FMLA leave around the holidays.  In the case of Southwest Airlines, however, one employee clearly took FMLA misuse a bit too far.

Douglas Rydalch was a reservation sales agent for Southwest.  When Southwest closed its reservation center in Salt Lake City where Rydalch worked, it transferred him to Houston.  However, his family remained in Utah.  In 2004, Rydalch injured his back, and these issues continued through 2007.  Curiously, Rydalch’s back issues tended to flare up on the days just before or after his previously scheduled time off -- 35 times, to be precise.  What’s worse, he often used FMLA leave on important dates and holidays.  In 2007, for example, he used FMLA leave in conjunction with July 4, Labor Day, Thanksgiving Day, Christmas Day, New Years Eve and his own birthday.  I’m not kidding.

Southwest caught onto the pattern of Rydalch's absences and began monitoring his FMLA use.  It learned that he had a habit of taking flights to and from Utah on the days he requested FMLA leave.  On Christmas Eve 2007, Rydalch's supervisor learned that he again had taken FMLA leave and later learned that Rydalch had been out of town when he called in his absence.  Upon further investigation, the supervisor determined that Rydalch booked a trip to Utah from December 22 to 27.  Thereafter, it was not surprising when Rydalch also called off for a bad back on December 26 and 27, which were his next two scheduled work days.  Southwest suspected that Rydalch misused FMLA leave in violation of the Company's attendance program.  After an internal hearing was held regarding his FMLA use (pursuant to the bargaining agreement governing Rydalch's employment), Southwest terminated Rydalch's employment because he abused FMLA leave.

When Rydalch later filed a lawsuit claiming FMLA retaliation and interference, Santa was waiting at the courthouse steps with a lump of coal.  In quickly disposing of his lawsuit, a federal court in Utah held that Southwest rightfully had an honest belief that Rydalch was abusing FMLA leave and that its termination decision was legitimate.  See court decision here: Rydalch v. Southwest Airlines (pdf).

Insights for Employers

Southwest Airlines isn't considered one of the best places to work for nothing.  An employee who not only abuses FMLA leave, but does so to effectively extend personal time off, raises the ire of co-workers.  Their actions can only have a negative impact on employee morale.  When you dare to take action as Southwest did in this instance, you not only rid yourself of FMLA abuse.  You also enhance employee morale.  Employers can learn much from Southwest's response here:

  1. To some extent (whether great or small), FMLA abuse affects every workplace.  Consequently, employers must be vigilant to identify patterns of abuse and act swiftly to investigate and stop it from occurring.  The costs of ignoring FMLA abuse are far more dear -- they impact employee morale and inflate overtime costs because other employees are left to pick up the slack.
  2. Where FMLA abuse is suspected, an employer has every right to investigate the circumstances and take action if it honestly believes that the employee has engaged in FMLA abuse.  All too often, employers in Southwest's situation feel powerless.  They live with the misconception that they cannot question the employee's reason(s) for leave or investigate any suspicious activity on the employee's part.  To the contrary, the FMLA regulations give employers fairly broad rights to inquire about an employee's reasons for leave and monitor patterns of suspected leave misuse to ensure that the employee's leave is legitimate.
  3. Where possible, consider having an objective participant review and play a role in the investigation and disciplinary action to further bolster the employer's legitimate, non-discriminatory reason for taking action against the employee.  Not all employers have the level of due process that Southwest's bargaining agreements afford, but courts tend to give even greater deference to an employer's termination decision where objective decisionmakers are part of the process.

Happy Father's Day: Dad Claims He Was Terminated After Taking FMLA Leave for Bonding with Newborn Child

Posted by Jeff Nowak on June 20, 2011

fatherhood.jpgAs a father of three, I tend to take interest in "feel good" stories about working parents.  However, in a recent ABA Journal article, an article about a working dad caught my attention for a far different reason.  The article highlighted Ariel Ayanna, who recently filed suit against his employer claiming he was terminated after taking FMLA leave following the birth of his son.  Ayanna v. Dechert LLP (pdf).

The Facts

Ayanna was employed as an attorney at the Boston office of Dechert LLP, an 800-attorney international law firm.  According to Ayanna, he was progressing well within the firm until he took time off under the Family and Medical Leave Act.  Prior to his leave, he had received two years of stellar performance evaluations and a $30,000 bonus in the year prior to his termination.  

During his second year at the firm, Ayanna's wife became pregnant with the couple's second child.  This, however, was no ordinary pregnancy.  Ayanna claims in his complaint that his wife suffers from borderline personality disorder, long-term post-traumatic stress disorder, major depressive disorder and general anxiety disorder.  During the pregnancy, he claims that his wife's personality disorder "deteriorated to the point that she attempted suicide."  Thereafter, upon birth of his child, Ayanna utilized four weeks of paid paternity leave plus additional time provided for under the FMLA to care for mom and baby.

According to Ayanna, when he returned from FMLA leave, his employer retaliated against him by incessantly criticizing and even poking fun at him for being the primary caretaker for his children.  He also claims that the law firm assigned him less work as a result.  On the day of his termination, Dechert gave Ayanna a negative evaluation that he claims improperly called him out for "'personal issues' [that] interfered with his meeting the employment requirements at Dechert." 

Ayanna's complaint is laced with a ton of conclusory blows against his former employer, including an allegation that the firm maintains a "macho culture" where time off to attend to fatherhood and being an "engaged" dad are seen as weak and undesirable.  The law firm has denied all of Ayanna's substantive allegations.  As the ABA Journal article noted, Ayanna's case is one that leave advocates have been waiting years to press in the courts.  Apparently, so was Ayanna.  Notably, in the year before his termination, Ayanna published an article (pdf) entitled "Aggressive Parental Leave Incentivizing: A Statutory Proposal Toward Gender Equalization in the Workplace," in which Ayanna outlined the manner(s) in which men could take (appropriate) advantage of parental leave.  Coincidence?  We'll find out more during the discovery phase of the case.

Insights for Employers

This type of litigation is a bit of a wake up call for employers, since we rarely have seen a working dad wage an FMLA retaliation claim under these circumstances.  However, might more like it lie ahead?  For starters, employers might consider the following to ensure you have maximized your protection against potential FMLA retaliation and sex discrimination claims brought by dads in your workplace: Do you maintain different leave policies for men and women after the birth of a newborn?  Do you provide greater paid maternity leave benefits than paternity leave benefits?  Are men (or women) treated differently because they take the maximum leave amounts for caretaker duties at home (even if it's in that remote department in your organization that no one pays attention to)?  If the answer is yes to any of these, employers are wise to address these discriminatory practices and/or confirm that the difference in benefits is applied for a non-discriminatory reason. 

Cat's Paw Already Impacting FMLA Claims

Posted by Jeff Nowak on April 25, 2011

catpaw.jpgLast month, the Supreme Court ruled in Staub v. Proctor Hospital(pdf) that an employer in an employment discrimination case can be liable for the discriminatory animus of an employee who influences, but does not make, the ultimate employment decision at issue.  Known as the “cat’s paw” theory, it already is having an impact on claims brought under the Family and Medical Leave Act. 

As the folks at the Ohio Employer's Law Blog point out, just days after the Staub decision, the reach of the Supreme Court's ruling already has impacted an FMLA case.  In Blount v. Ohio Bell Telephone Co., the employer maintained a "performance management system" that disciplined employees for failing to meet certain goals.  Managers were given wide discretion to decide whether to issue discipline when an employee did not meet set goals.  In Blount, two employees who had recently taken FMLA leave sued after they were terminated for failing to meet certain goals under the performance management system.  In short, the employees claimed they had been treated differently than other employees who failed to meet the same goals but were not terminated.

In defending the claim, the telephone company claimed that the decision to terminate the employees came from top-level management, not the employee's direct supervisors.  Thus, the employer claimed that any alleged biased from the lower-level managers had no bearing on the ultimate termination decision.  The Court disagreed:

Even if the decision to punish and terminate resided higher in the supervisory chain, . . . the animus of the Center Sales Managers can be inferred upwards where it had the effect of coloring the various adverse employment actions in this suit. See Staub (discriminatory animus can be inferred upwards where the employee who makes the ultimate decision to punish does so in reliance upon assessments or reports prepared by supervisors who possess such animus).

As a result, the Court allowed the employees' FMLA retaliation claims to be considered by a jury.

Insights for Employers

The Blount decision serves as a reminder to employers that employee allegations of illegal bias by managers should be independently investigated, regardless of when and at what point in the discipline process the allegations are raised.  Clearly, a senior-level officer generally can and should rely on the recommendations of lower-level managers when deciding whether to issue discipline or terminate an employee.

However, an employer must tread carefully where there are claims of bias against a manager recommending discipline.  Might the result have been different had the telephone company investigated the claims of bias before terminating the employees?  In doing so, the telephone company could have tested the accuracy of the claims and determined whether the employees' terminations were independently justified and not tainted by any bias.  Such an investigation also would have made for a better record for the company to defend in litigation. 

The decision also is a gentle reminder that training of managers and supervisors is vitally important to combat litigation.  A dollar spent now on training will save a whole lot more later.  Be sure to include some space in your 2011 budget for training.

Supreme Court's Ruling On Third-Party Reprisal Claims - Does It Apply To The FMLA?

Posted by Bill Pokorny on January 25, 2011

Supreme Court building.JPGYesterday, the U.S. Supreme Court ruled that an employee allegedly fired in retaliation for a a sex discrimination charge filed by his fiancée could sue his employer under Title VII of the Civil Rights Act of 1964. Because the Court's reasoning could arguably be extended to retaliation claims under the FMLA, covered employers should take note. Thompson v. North American Stainless (.pdf).

The Decision

Eric Thompson and his fiancée, Miriam Regalado, both worked for North American Stainless ("NAS"). In February 2003, the EEOC notified NAS that Regalado had filed a charge alleging sex discrimination. NAS fired Thompson three weeks later. Thompson then filed his own EEOC charge and later filed suit in U.S. District Court, alleging that NAS had fired him in order to retaliate against Regalado for filing her charge with the EEOC. The District Court dismissed the case, holding that "Title VII does not permit third-party retaliation claims." Thompson appealed. A three-judge panel of the Sixth Circuit Court of Appeals reversed the District Court, but after rehearing the full court voted to affirm the District Court's ruling by a vote of 10 to 6. The majority reasoned that Thompson could not sue for retaliation because he did not engage in any activity protected by Title VII. Thompson then appealed to the Supreme Court.

In an 8-0 decision (Justice Kagan did not participate), the Supreme Court reversed the Sixth Circuit's ruling. In an opinion by Justice Scalia, the Court observed that Title VII's anti-retaliation provision is broader than the statute's substantive anti-discrimination provisions. Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin "with respect to ... compensation, terms, conditions, or privileges of employment" and discriminatory practices that would "deprive any individual of employment opportunities or otherwise adversely affect his status as an employee." In contrast, the anti-retaliation provision prohibits an employer from "discriminating against any of his employees" for engaging in protected conduct, without further specifying what acts are prohibited.

 

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Scared of Liability for FMLA Retaliation? Beware of Bingo Workers!

Posted by Jeff Nowak on October 25, 2010

bingo.jpgEmployers increasingly are finding federal courts to be receptive forums for the consideration of an employee’s retaliation claim.  In Burlington Northern v. White, for instance, the Supreme Court held that an employer can retaliate within the meaning of Title VII with actions short of terminations and other ultimate employment actions.  Last year, in Crawford v. Metro Government of Nashville, the Court ruled that an employee who was terminated after she answered questions during an employer’s internal investigation was protected under the anti-retaliatory provisions of Title VII.

The FMLA is no exception.  In his blog, attorney Michael Davey effectively summarizes a recent FMLA and ADA lawsuit brought against Wal-Mart where the federal trial court refused to dismiss an FMLA retaliation claim where Wal-Mart declined to interview Kimberley Stoppi for a management position after she returned from FMLA leave.  Stoppi v. Wal-Mart Transportation, LLC  However, Stoppi provided compelling evidence that other employees who received interviews lacked the transportation experience that she had.  In fact, one interviewee had worked in a dentist's office prior to working at Wal-Mart and another worked in a bingo hall.  After the interviews, Wal-Mart decided not to fill the position at all. 

Had she been allowed to interview for the position, Stoppi apparently was confident she would have hit  B-I-N-G-O.  Nevertheless, Stoppi sued Wal-Mart, alleging among other things that the company retaliated against her by refusing to interview her for the promotion simply because she took FMLA leave.  When explaining its reasons for failing to interview Stoppi, Wal-Mart argued that the individuals interviewed for the job more fully met the qualifications for the position than she did.  However, the court found that a jury might see it differently, particularly in light of the fact that Stoppi provided evidence that several candidates had less supervisory experience than she.  As a result, the court allowed Stoppi to proceed with her FMLA retaliation claim.

Insights for Employers

  1. Don’t retaliate against employees because they have taken FMLA leave.  Not ever.  Never. 
  2. Employers should carefully arrive at and articulate the qualifications for the position under consideration and compare each candidate—independent of FMLA leave and other protected leave they have taken—against these qualifications.  Here, the outcome might have been different had the employer been able to distinguish the plaintiff from other candidates through objective, quantifiable criteria.

Employee Can Advance FMLA Claim Even Though Leave Not Taken

Posted by Jeff Nowak on October 06, 2009

In a ruling that broadens employee protections under the Family and Medical Leave Act, a federal appellate court recently held that an employee may advance FMLA interference and retaliation claims even when the employee requested but did not take FMLA leave. Erdman v. Nationwide Insurance Company (pdf).

The Facts

In Erdman, the plaintiff requested to use vacation time to prepare her daughter with Down Syndrome for the beginning of the school year.  Her employer, Nationwide Insurance Company. denied the request.  Erdman then requested FMLA leave, submitted paperwork in support of her request, and was advised that there were no anticipated problems with her use of FMLA leave.  Approximately one month after she requested leave, but before she took any leave time, Nationwide terminated her employment, citing behavioral problems.  Erdman filed suit against Nationwide, alleging that she was fired for requesting FMLA leave.  Citing earlier court precedent, Nationwide argued that Erdman could not recover on an FMLA retaliation theory because she did not actually take leave.

Court Ruling

The Court rejected this argument, stating that such a result would "perversely allow an employer to limit an FMLA plaintiff's theories of recovery by preemptively firing her."  As such, the court held that that firing an employee for a valid request for FMLA leave may constitute interference with the employee's FMLA rights as well as retaliation.

On a separate issue, the court also determined that a jury should decide whether Erdman was "eligible" for FMLA leave. Despite Nationwide's arguments that she had not worked at least 1,250 hours during the previous 12-month period to be eligible for FMLA leave, the court held that a genuine factual dispute existed as to whether Nationwide was constructively on notice of the hours Erdman worked from home.

Insights for Employers

The Erdman decision highlights a couple of important issues for employers.  Notably, it clarifies that an employee need not actually take FMLA leave to advance an actionable FMLA retaliation claim.  Moreover, it serves notice to employers to carefully account for hours worked outside the office or the normal workday when determining an employee's eligibility for FMLA leave.

Employer May Raise Defense that an Employee is Ineligible for FMLA Leave Even After Leave is Given

Posted by Jeff Nowak on October 06, 2009

Does an employee have the right to take FMLA leave and be restored to the same or equivalent position even though the employer does not employ 50 employees and is not covered by the FMLA?  The answer may depend on the particular court hearing the case, as evidenced by a recent federal appellate court decision.  The Sixth Circuit Court of Appeals recently held that an employer is not precluded from arguing that its former employee was ineligible for FMLA leave even though the employer previously led the employee to believe he was eligible for FMLA leave and later provided such leave. Dobrowski v. Jay Dee Contractors (pdf).

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