whack.jpgThe Department of Labor was serious when it required employers beginning in 2009 to provide individual FMLA notices to employees regarding their eligibility and rights (Notice of Eligibility and Rights & Responsibilities) and whether FMLA applies (Designation Notice). 

Apparently, courts think this is important, too.  And The Wackenhut Corporation learned this lesson the hard way.

The Facts

Jacqueline Young worked for Wackenhut Corporation.  Wackenhut met its general FMLA notice obligations in that it included in its employee handbook a notice to employees of their FMLA rights and also posted the DOL’s FMLA poster.  However, when Young sought and took FMLA leave, she took all 12 weeks without having received from Wackenhut a Notice of Eligibility and Rights & Responsibilities and a Designation Notice.  Nothing.  Nada. 

In Young’s case, she exhausted her 12 weeks of FMLA leave, and when she failed to return after her leave expired, Wackenhut terminated her employment two weeks later.  When Young filed an FMLA interference claim and later filed a motion for summary judgment, the court ruled in favor of Young.  No jury needed.  Automatic judgment was entered in favor of the plaintiff. 


The Court held that, per the FMLA regulations, the individual FMLA notices provided to the employee are absolute, and when they are not provided, the employee is prejudiced:

Plaintiff was not afforded the opportunity to make informed decisions about her leave, based on the lack of FMLA notice provided to her by [Wackenhut]. Had she been appropriately apprised of her leave time, Plaintiff could have planned and structured her leave time differently. Thus, Plaintiff did suffer prejudice.

According to the court (not to mention a clear read from the regulations), “individual notice” must be provided to the employee when he/she requests FMLA-related leave or when the employer acquires knowledge that an employee’s leave may be for an FMLA qualifying reason.  29 CFR 825.300(b). When the employer fails to do so, it suffers the consequences.  Young v. The Wackenhut Corporation (pdf)

Insights for Employers

When employers do not provide the appropriate individual notices (i.e., the Notice of Eligibility and Rights & Responsibilities and the Designation Notice), this is tantamount to strict liability: the employer is on the hook for the loss that results.  As the court pointed out here, when an employee puts the employer on notice of the possible need for FMLA leave, the employer must provide the following notices or risk getting whacked like Wackenhut:

1. Eligibility Notice. Once an employee notifies an employer of an FMLA qualifying medical leave, including the birth of a child, “the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days” of ascertaining that her leave may be for an FMLA-qualifying reason, absent extenuating circumstances. 29 C.F.R. 825.300(b)(l). 

Right and Responsibilities Notice. Whenever the Eligibility Notice (above) is provided, “Employers shall provide written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. . . Employers are also expected to responsively answer questions from employees concerning their rights and responsibilities under the FMLA.” 29 C.F.R. 825.300(c)(1).

Employers can access this Notice here.  (Notice of Eligibility and Rights & Responsibilities)

2. Designation Notice. Within five days of when an employer has enough information to determine whether the employee’s leave is FMLA qualifying, the employer must notify the employee in writing as to whether the leave will be designated and will be counted as FMLA leave. 29 C.F.R. 825.300(d)(1)(4).

Employers can access this Notice here.  (Designation Notice)

Employers: training your staff about their responsibilities under the FMLA is essential.  When they forget these responsibilities, a simple oversight of the kind here can be extremely costly.