The FMLA Blog

Adequate Employee Notice of the Need for FMLA Leave Involving In Loco Parentis Parent: Further Explanation Required

The FMLA allows an eligible employee of a covered employer to take FMLA leave to care for a covered family member, including a parent.  A "parent" includes a biological, adoptive step or foster mother or father, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter (e.g., under 18 years of age, or over 18 years of age an incapable of self-care due to a disability).  29 CFR 825. 122(b).  In loco parentis means that the individual had day-to-day responsibility to care for or financially suport the employee when the employee was a son or daughter.  29 CFR 825.122(c)(3). 

To invoke the protections of the FMLA, the employee must notify his or her employer of the need for FMLA-qualifying leave.  The FMLA's notice requirements are not onerous.  Basically, the employee must provide adequate information to apprise the employer that the leave may be in need of FMLA leave. An employee need not invoke the "FMLA" by name.  If the employer needs more information to determine whether the leave is covered by the FMLA, they are required to inquire further.  

In Ruble v. American River Transportation Co., No. 2:10 CV 24 DDN (E.D. Mo. June 29, 2011), Jack Ruble notified his supervisor (the boat captain) that his 90-year-old grandmother was ill and that he may need to leave the boat during the voyage.  It was uncontested that Ruble's grandmother took exclusive care of Ruble when he was a child for several years. 

During the voyage, Ruble was notified by his family that his grandmother had been diagnosed with terminal cancer and was not expected to live more than a week.  That day, he told the boat captain that his grandmother had terminal cancer, that she was not expected to live more than a week, and that he wanted to leave the boat.  Ruble and the crew lived on the boat during the voyage.  Under Company policy, leaveing the boat during a voyage without approval was grounds for removal.  The boat captain referred Ruble to the Company Personnel Manager, whom Ruble called and explained the situation. 

Ruble told the Personnel Manager that his grandmother was ill and he needed to go see her before she died because she had taken care of him.  He delayed leaving the vessel for a few days while the Company tried to secure a replacement.  The Company asked Ruble to wait one more day for the replacement before leaving the boat.  Ruble declined, and flew home.  He did not, however, see his grandmother at the hospital until the following day. 

Ruble's grandmother was discharged from the hospital a few days after he arrived.  She stayed with her daughter, who was primarily responsible for her care.  Ruble's grandmother did not live with him at his home near or before her death.  Ruble stayed by his grandmother's side throughout her hospital stay, providing psychological comfort, and care.  He also spent almost every day with his grandmother while at Shipley's house.  Ruble's grandmother died on May 18.  

Ruble was terminated from employment for leaving the boat without authorization during the voyage.  He sued, alleging that his termination violated the FMLA.  The Company moved for summary judgment to dismiss the case, arguing that Ruble failed to provide adequate notice that the leave may be FMLA-qualifying. The Company argued that Ruble failed to adequately notify it that his grandmother was his in loco parentis parent while Ruble was a child.  Absent an in loco parentis relationship, the FMLA does not entitle an employee to take leave to care for a grandparent.

The Court opined:

When an employee seeks to invoke FMLA benefits based on an in loco parentis relationship, the employee must provide his employer with sufficient facts indicating that such a relationship may exist. See Sherrod v. Philadelphia Gas Works, 57 Fed. Appx. 68, 72-73 (3d Cir. 2003)("Since [the employee] did not initially tell her employer that her grandmother had raised her, she failed to sufficiently explain her reasons for the needed FMLA."); Abousaidi v. Mattress Discounters Corp., No. 1:05CV1142 (JCC), 2005 WL 3797366, at *2 (E.D. Va. Dec. 8, 2005).  Otherwise, the employer could not know that the employee's leave may be secured by the FMLA. See Wierman,638 F.3d at 1000 (the employer's duties do not arise until the employee gives sufficient information to who that he may be in need of FMLA leave).

The Court found that Ruble's assertion that he told the Personnel Manager that his grandmother "took care of him," coupled with his more effusive affidavit on the subject, created a genuine issue of material fact regarding the adequacy of Ruble's notice sufficient to defeat the Company's motion for summary judgment. 

Comment:  To secure the benefits and protections of the FMLA, an employee requesting FMLA leave to care for an in loco parentis parent must articulate some facts to put the employer on reasonable inquiry notice that the leave might be FMLA qualifying.  An in loco parentis parent does not have to involve a legal or biological relationship.  All that is required is that the individual had responsibility to care for and/or financially support the employee when the employee was a son or daughter within the meaning of the FMLA.  Absent a biological or legal relationship, it may not be obvious to an employer that a grandparent, older sibling, uncle, aunt, or someone else cared for the employee when the employee was a child.  While an employee need not affirmatively assert an in loco parentis relationship (although they certainly could do so), the do need to articulate some facts suggesting an in loco parentis relationship.  If the employer needs additional information to confirm an in loco parentis relationship, the burden is on the employer to inquire further.

As demonstrated in Ruble, the notice bar on this issue is relatively low (e.g., my grandma took care of me).  It is not, however, non-existent.  Employers, in turn, must be alert to in loco parentis relationships as a qualifying basis for FMLA leave.  When in doubt, ask the employee to clarify the nature of what might be an in loco parentis relationship.      

 

 

  

Impact of Proposed Repeal of Defense of Marriage Act on FMLA Leave

On Tuesday, July 19, 2011, the White House announced President Obama's support for repeal of the Defense of Marriage Act (DOMA).  The DOMA defines marriage for purposes of federal benefits, including FMLA leave, as a union between one man and one woman.  DOMA limited the availability of FMLA leave to care for a spouse to heterosexual marriages, thereby excluding same sex marriages and civil unions.  In February of this year the Obama administration announced that it would not longer defend the constitutionality of the DOMA. The recent announcement would repeal the DOMA altogether.

The repeal of the DOMA is contained in the Respect for Marriage Act of 2011, S. 598 and H.R. 1116.  The House and Senate bills are identical. Both would repeal the section of the DOMA defining marriage as the union of one man and one woman.  In its place, the legislation propose the following language:

For purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individuals marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State. 

The proposed legislation defines a "State" to include the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.

Comment: If enacted, the Respect for Marriage Act would require covered employers to permit FMLA leave to care for a same sex spouse, provided that the marriage was legally recognized in the State where the marriage was entered.  The Respect for Marriage Act does not set a national standard stating that same sex marriages are valid for purposes of the FMLA.  Rather, the Respect for Marriage Act requires employers to look to State law to determine if a marriage is valid.  Curently, a few states recognize same sex marriage.  Many states outlaw same sex marriage.  Some states recognize same sex civil unions or domestic partners, but not same sex marriages.  Because they do not have the same status as marriage, the Respect for Marriage Act as currently written would not require employers to grant FMLA leave to an employee to care for a domestic partner or spouse in a civil union.   

Combined with the Full Faith and Credit Clause of the Constitution, the Respect for Marriage Act requires covered employers with operations in states that do not recognize same sex marriage to nevertheless recognize those marriages as valid for FMLA leave purposes if the marriage was valid in the state where the marriage was entered.  

For example, a same sex couple were legitimately married in New York, a State that recognizes same sex marriage.  The couple thereafter moves to Mississippi for a job opportunity.  Lets assume that Mississippi does not authorize same sex marriages.  All things being equal (e.g., company is covered by the FMLA, employee is eligible for leave, condition meets one or more serious health condition definitions, proper notice and certifications provided, etc.), if the employee of this same sex marriage requests FMLA leave to care for their spouse with a serious health condition, the employer could not deny the leave simply because Mississippi does not recognize same sex marriages.  Because the marriage arose in New York, where it was valid when entered, the couple are married for purposes of FMLA leave.  The Company would process the leave request as it would any other FMLA leave request by an employee to care for a spouse.

Passage of the legislation in the Democrat controlled Senate is likely, even with their thin majority.   During the run-up to the Presidential election, it will be interesting to see how the legislation fares in the Republican-controlled House.  The framing of the bill as something of a States-rights issue may peel some Republicans off their otherwise expected rejection of the proposed  legislation.  The Obama Administration's support of the repeal of the DOMA will also require the Republican Presidential hopefuls to state their position, which may also result in a few surprises.

Stay tuned!     

A link to the Senate bill is provided: http://thomas.loc.gov/cgi-bin/query/C?c112:./temp/~c1120x92ET

Employee Must Be in Close Physical Proximity to Ill Family Member to Satisfy FMLA "To Care For" Requirement

Girard Baham requested and was granted FMLA leave to care for his daughter, who fell and suffered a serious head injury while the family was on vacation. The daughter was airlifted from Honduras to Miami, where the family remained in the hospital while their daughter recovered.  

Baham was on provisionally approved FMLA leave from March 20 through May 5, 2008.  From April 12 through April 29, however, Baham returned to their home in Texas in response to neighborhood association letters complaining of an untended yard.  He also cleaned up the house, and added padding to sharp edges in the home to protect his daughter upon her return.  Baham's wife remained in Florida while caring for their daughter.  Baham talked with his wife by telephone every day.  Baham did not, however, inform his employer of his returned to Texas. 

On his return, Baham was informed that his FMLA paperwork was incomplete, and he was asked to provide the missing information.  Baham let work later that day, leaving his keys and ID card with the security guard. The employer interpreted this act as a resignation, and sent a letter confirming his termination a few days later.  Baham sued, alleging that his termination violated the FMLA.  The federal trial court dismissed the suit, finding that Baham failed to establish that he "cared" for his daughter within the meaning of the FMLA while he was in Texas.  Baham appealed the case to the Fifth Circuit.

To be entitled to FMLA leave, an employee must show that he is needed "to care for" a family member with a serious health condition.  29 USC 2612(a)(1)(C).  In addition to providing physical care, the employee is entitled to leave in order to provide psychological comfort and reassurance which would be beneficial to his or her child or to make arrangements for changes in care such as transfer to a nursing home.  29 CFR 825.116(a). 

Baham argued that he was entitled to FMLA leave while he was in Texas away from his daughter based on frequent telephone contact wit his wife, who was caring for their daughter.  The Fifth Circuit disagreed.  Following the lead of the Ninth Circuit in Telllis v. Alaska Airlines, Inc., 414 F.3d 1045, 1047 (9th Cir. 2005), the Fifth Circuit found that the "to care for" requirement required the employee to provide "some actual care" while in "close and continuing proximity to the ill family member."  While Baham was in Texas he was not in close continuing proximity to his daughter.  The Court also opined that cutting the lawn, cleaning the house, and preparing the house by padding furniture, did not qualify as "care" under the FMLA.  The Court noted that it found no authority holding that merely remaining in frequent telephone contact with a relative while in another state for weeks constitutes providing care for purposes of the FMLA. 

 The Fifth Circuit afformed the judgment of the district court dismissing Bagahms FMLA claim.

Comment:  The Fifth Circuit joined the Ninth Circuit in imposing a requirement that "caring for" an ill family member requires the provision of some actual care in close and continuing proximity to the ill family member.  With respect to the "actual care" requirement, the decision is not surprising in that Baham's telephone contacts were with his wife, not his daughter or his daughter's physicians.  The situation would doubtless have been different had he been consulting with his wife and doctors about treatment options for his daughter. That activity would likely be viewed as providing "some actual care."  Cutting the lawn, and cleaning and preparing the house for the daughter's return home was apparently too attenuated from "physical or psychological care" to fall within the protections of the FMLA, at least for the Fifth Circuit.

Interestingly, neither the Statute nor the DOL FMLA regulations specifically impose a "close and continuing proximity" requirement for an employee to "care for" an ill family member.  Query whether in a world of real-time internet video/audio access to the daughter's hospital room whether an employee could not provide psychological care remotely.  With the right facts, I believe the court-manufactured "close and continuing proximity" care requirement will fall as a relic of a past age in light of the new technological reality.            

 Baham v. McLane Foodservice, Inc., No. 10-10944 (5th Cir. July 1, 2011)  http://www.ca5.uscourts.gov/opinions/unpub/10/10-10944.0.wpd.pdf

 

 

 

Third Circuit Sustains Employee's Removal for Lying About Reason for Absences

John Prigge told Sears, his employer, that he was absent for two days to receive radiation treatment for prostate cancer.  In reality, Prigge suffered from bipolar disorder, which had been diagnosed several years earlier.  Prigge was subsequenlty absent for seven days during which he was admitted to a medical clinic suffering from depression.  On this occasion, Prigge advised Sears that his absence was due to incapacity and treatment for bipolar disorder.  He also confessed that his prior absence was not due to prostate cancer, but to bipolar disorder. 

Sears demanded that Prigge provide medical documentation substantiating his need for leave due to prostate cancer and bipolar disorder.  Prigge provided medical documentation substantiating his need for leave due to bipolar disorder.  He provided medical certification verifying that he did not suffer from prostate cancer.  Sears fired for failure to substantiate his need for leave with medical documentation due to prostate cancer, and for lying about his need for prostate cancer. 

 The Third Circuit agreed with Sears.  It found, essentially, that Sears had the right to terminate Prigge for lying about his need for leave, and because he failed to substantiate that need with supporting medical documentation. 

Comment:  However awkward or embarrassing, employees need to tell their employers the real reason for their need for FMLA leave.  Courts have not allowed employees to tell their employer a false reason for the need for leave.  In addition to being truthful, had Prigge told Sears the real reason for the prior leave it would have likely been covered by the FMLA.  Courts have not excused employees from telling their employer the real reason for their need leave out of embarrassment or fear that the reason will be fodder for office gossip.  Nor have they looked past the false reason to find FMLA coverage based on the real reason for the leave.  Courts have consistently found that employers are entitled to the real reason animating the need for leave. 

 Prigge v. Sears Holding Corp., No. 10-3397 (3d Cir. June 23, 2011).

No FMLA Protections Based on Incomplete Medical Certification

Janet Lewis was employed as a civilian in the Air Force as Director of a the Elmendorf Air Force Base Child Development Center.  She requested 120 days of FMLA leave due to her own serious health condition. The Agency required Lewis to support her request for leave with the WH-380 medical certification form.  Lewis had her doctor fill out the form, which she submitted in support of her leave request. At the same time, she submitted a prescription from her doctor, and a 2006 letter from another doctor.  Kathleen DeShasier, Lewis's supervisor, told her the documents she submitted were insufficient to support her request for FMLA leave.  Lewis refused to submit more information, believing that she had provided all the information necessary under the FMLA.  When she failed to show up for work, the Agency fired her AWOL.  She appealed her removal through the administrative and federal district court, without success. 

Before the Ninth Circuit, Lewis argued that the documents she submitted provided sufficient medical facts to support the conclusion that she suffered from an FMLA-covered serious health condition. The Ninth Circuit disagreed.  Lewis's WH-380, the court observed, "states only that she was diagnosed with Post-Traumatic Stress Disorder and needed therapy, medical treatment, bed rest, two prescriptions medications, and 120 days off work." 

Significantly, the Court found that the WH-380 form was incomplete because it failed to-

• provide a summary of the medical facts that support the diagnosis;
• contain an explanation as to why Lewis was unable to perform her work duties; and
• address what additional treatments would be required for her condition.

The   rejected Lewis's alternative argument that she submitted adequate medical documentation to the HR department in support of her workers'compensation claim.  Along with her OWCP claim, Lewis did, the Court found, submit medical documents and a detailed diagnosis.  However, Lewis did not deliver the OWCP documents to her supervisor. Instead, she specifically requested that the HR department keep her medical records confidential and out of her supervisor's hands.  In so doing, the Court essentially found that Lewis could not rely on her OWCP documents as a way to supplement her incomplete WH-380.

Comment:  To substantiate an employee's request for serious health condition FMLA leave, an employer may require the employee to submit a complete medical certification.  The permissible content of that certification is governed by federal regulations.  To determine whether the leave is covered by the FMLA, an employer may not require an employee to provide more medical information than is permitted by law.  While an employer may voluntarily agree to accept a medical certification with less medical information than permitted  (employers are not mandated to require any medical certification), they are perfectly within their rights to insist that they receive a complete medical certification. 

Some employee's are very reluctant to disclose their medical condition to their supervisor or employer when requesting leave.  They fear that their highly confidential medical information will "get out" and become fodder for the office rumor mill.  These employees tend to offer sparce medical certifications.  These certifications may even have something written in every area of the WH-380 form, but the information provided is either incomplete or useless.  When offered the chance to submit additional information, these employees, like Lewis, often refuse.   

Employees who refuse to provide additional information run the considerable risk of losing FMLA protections.  As with Lewis, employees who forge ahead and take the leave anyway in the belief that they did provide a complete medical certification, and that the employer is wrong, run the considerable risk of being disciplined for AWOL.  Before risking your job, employees better be certain that they are right and their employer is wrong on this issue.  Check with your union, the US US Department of Labor, or an attorney. 

Note that the Court rejected Lewis's argument that she satisfied her FMLA medical certification by providing additional medical information to the HR department as part of the OWCP claim. While the Court did not spell it out, the implication is that she was required to submit her FMLA request to her supervisor, not the HR department.  Moreover, she specifically asked that her OWCP medical documents be kept confidential including from her supervisor. 

Providing medical information, but not to the right person or office, is another (failed) tactic frequently used by employees who don't want to disclose information to their supervisor even though that is what may be required by the employer's policy.  For example, as in Lewis, employees will send their medical documentation to a medical or OWCP unit with confidentiality restrictions, and then claim that they satisfied the FMLA because they provided the certification to their employer writ large.   

Where the employer has a policy or practice requiring the employee to request leave and provide supporting medical certification through the immediate supervisor or a specified office, providing the medical documentation to some other unit of the employer will not secure the protections of the FMLA.  Courts have not allowed employees to game the system by providing supporting medical documentation to someone within the company, but outside of the policy or practice.   

Lewis v. USA, No. 10-35624 (9th Cir. May 26, 2011), http://www.ca9.uscourts.gov/datastore/opinions/2011/05/26/10-35624.pdf

      

 

 

 

 

Policy Limits on Vacation Travel During FMLA Leave Upheld

A federal district court recently upheld an employer's policy requiring an employee to remain in the immediate vicinity of their home as a condition of receiving paid sick leave, including during periods when the employee is on FMLA leave.  In limited circumstances, the policy allowed an employee to travel outside of the immediate vicinity of their home for medial treatment, family needs, and with the prior consent of the employer.  Violation of the policy could result in termination of paid leave, as well as discipline. 

Denise Pellegrino was employed by the Communications Workers of AMerica (CWA) in a clerical capacity.  Pursuant to the CWA FMLA-Sick Leave Policy, Pellegrino notified the CWA that she needed leave for surgery.  The CWA approved Pellegrino's request for FMLA leave, and notified her that she would be required to substitute paid sick leave for the absence.  While on approved leave, Pellegrino traveled to Cancun, Mexico, where she stayed for a week.  There was no medical or family reason for the trip, nor had she secured the CWA's prior consent to travel outside of the immediate vicinity of her home during leave. The CWA terminated Pellegrino for violation of the CWA's leave policies. 

Pellegron filed suit alleging that her termination violated the FMLA.  CWA moved for summary judgment alleging that the FMLA did not protect Pellegrino from termination for a reason unrelated to her FMLA leave- namely, violation of the CWA policy restricting unapproved travel for someone receiving paid sick leave benefits.  CWA argued that it would have terminated her irrespective of her status under the FMLA as it had the right to enforce its policies restricting unapproved travel where an employee is on paid sick leave.   The Court agreed with the CWA.

The Court confirmed that the FMLA does not shield an employee from termination if the employee was allegedly involved in misconduct related to the use of FMLA leave.  So long as employer policies do not conflict with or diminish an employee's FMLA rights, the FMLA, the Court found, "in no way prevent an employer from instituting policies to prevent the abuse of FMLA leave."  Here, CWA terminated Pellegrino because she violated CWA's Sickness and Absenteeism policy by leaving the immediate vicinity of her home without prior approval, or for any other permissible reason.  The Court reasoned that the policy served the legitimate purpose of ensuring that the privilege of paid sick leave is not abused. The Court also found that the policy does not discourage or prevent CWA employees from taking FMLA leave. 

The Court awarded summary judgement to the CWA for violation of the CWA travel restriction policy, a legitimate reason independent of her use of FMLA leave.

Comment: The FMLA does not prohibit an employer from enacting and enforcing leave and attendance policies to control leave abuse even where, as here, those policies may apply to FMLA leave.  Remember, under federal law, FMLA leave is always unpaid.  The only way an employee can get paid while on FMLA leave is pursuant to an employer's paid leave policy.  Employers are not required to offer paid sick or personal leave, but many do.  An employer's paid leave policy may not single out FMLA leave for special treatment.  Rather, as in Pellegrino, the paid leave policy should generally apply to all absences due to sickness or disability, which may also encompass FMLA leave.

In a fascinating footnote, the Court in dictum opined that, even if an employer did not have a formal policy restricting travel during FMLA leave, "no reasonable jury could find that an employer acts illegitimately or interferes with FMLA entitlements when that employer terminates an employee for taking a week-long vacation to Mexico without at least notifying the employer that her doctor had approved the travel or that she would be out of the country."  

I note that the FMLA generally does not require an employee on approved FMLA leave to notify an employer of their whereabouts during leave.  The Court's dictum would appear to impose such a requirement where none exists.  Absent a policy, I would not counsel employers to take adverse actions against employees for failure to provide notice of their intent to leave the vicinity of their homes during FMLA leave.    

The decision is consistent with a long line of cases allowing employers to impose and enforce neutral leave and attendance policies to curb leave abuse, even where the leave is covered by the FMLA.     

Pellegrino v. Communications Workers of America, AFL-CIO, Civil Action No. 10-0098 (W.D. Pa. May 18, 2011) http://op.bna.com/dlrcases.nsf/id/jaca-8h2m25/$File/Pellegrino.pdf

 

   

 

Evidence of Employer's Pre-Leave Discussions of Job Elimination Defeats FMLA Retaliation Claim Based on Post-Leave Job Elimination

Karen Leal worked for BFT, Limited as a Call Center Trainer.  Beginning in July 2008, BFT's President repeatedly questioned the newly appointed Call Center Manager of the necessity of the Trainer position.  In August 2008, Leal notified the Call Center Manager that she was pregnant and would need FMLA leave sometime in the future.  In January 2009, BFT laid off nine full-time employees due to the economic downturn.  BFT notified the remaining employees that additional layoffs were not planned.  Leave began her FMLA leave in February 2009, with a planned return date in April.  In March 2009, BFT's President and the Call Center Manager determined that the Trainer position was no longer needed based on a decrease in the Call Center employees from 40 to 22.  On March 27, 2009, BFT informed Leal of the decision, and offered her an 8-week severance package- the same package as had been offered to other employees whose jobs had been eliminated.  Lead declined the severance package, and sued BFT alleging FMLA retaliation.

The Court applied the McDonnell Douglas burden-shifting scheme for retaliation claims.  To establish a prima facie case, Leal had to show that: (1) she was protected under the FMLA; (2) she suffered an adverse employment action; and (3) the adverse decision was made because she took leave to which she was entitled under the FMLA.  Leal and BFT agreed that Lead satisfied the first two elements. With respect to the third, the Court determined that Leal's termination during FMLA leave satisfied the causal "temporal proximity" requirement and her protected activity to establish a prima facie cse.

The burden shifted to BFT to articulate a nonretaliatory reason for its employment decision. BFT asserted that it eliminated the Trainer position because: (1) the decreased need for training due to the halving of the Call Center staff; (2) the absence of evidence establishing that training increased sales; and (3) that discussions had been in the works for some time questioning the continuing need for the position.  The Court determined that BFT established a legitimate non-discriminatory reason for its decision.

The burden of proof shifted back to Lead to proffer evidence that would permit a reasonable trier of fact to find that BFT's proffered reason was a pretext for retaliation for her exercise of FMLA leave.  To accomplish that, Leal "must reveal a conflict in substantial evidence on the ultimate issue of retaliation in order to withstand a motion for summary judgment." Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998).    

To satisfy her burden, Leal argued that the temporal proximity between her FMLA leave and BFT's adverse employment action demonstrates its discriminatory intent.  The Court found Leal's argument insufficient to create a genuine issue of material fact regarding whether or not BFT's asserted reason for eliminating the Trainer position was a pretext for retaliation for exercising her right to take FMLA leave.  With respect to temporal proximity, the Court noted that BFT's president and the Call Center Manager had already been discussing BFT's continued need for a Trainer.  The fact that BFT was considering the elimination of the job prior to Leal's exercise of FMLA rights, the Court found, undermines Leal's temporal proximity argument.

Comment:  Courts have regularly found in favor of employers where the alleged retaliatory adverse action was in the pipeline prior to the exercise of FMLA rights.  What attracted me about the Leal case is the weakness of the pre-leave pipeline evidence.  The evidence that the Company was discussing the elimination of the position consists of an indeterminate number of unanswered queries by the BFT president to the new Call Center Manager.  The Court noted that no firm recommendation or decision had been made on the issue before Leal requested and took FMLA leave.  

The Court, in my opinion, appears to set the pretext bar pretty darn high for an employee to defeat an employer's proffered non-discriminatory reason.  To defeat temporal proximity, all the employer need show is that the issue was raised by a member of management at some point prior to the exerrcise of FMLA rights (in Leal, six months prior).  The query need not have resulted in a recommended course of action, or final decision. 

In the more typical case, the employer at least suspects that an employee has committed misconduct so that discipline is at least on the horizon prior to employee's request for or taking of FMLA leave.  By comparison, Leal appears to suggest that the mere possibility that some action may be taken prior to an employee's exercise of FMLA rights is enough to negate the temporal proximity of the protected activity (e.g., taking FMLA leave) and the adverse action (severance). 

Leal v. BFT, Limited Partnership, No. 10-20411 (5th Cir. April 28, 2011).  

 

Weekly Calls to Employee on FMLA Leave To Ask When They Would Return to Work Interfered with Employee's FMLA Rights

In Terwilliger v. Howard Memorial Hospital, No. 09-CV-4055 (W.D. Ark. Jan. 27, 2011), the Court found that weekly calls by the employee's immediate supervisor during the employee's approved, post-back surgery FMLA leave to determine when the employee would return to work interfered with the employee's FMLA rights by discouraging or "chilling" the use of FMLA leave. The employee claimed that, as a result of the calls, she felt pressured to return to work rather than remain on FMLA leave.  The employer argued that, because the employee did not in fact return to work earlier, the employee failed to establish her FMLA interference claim.  The Court disagreed with the employer, noting that "interference" includes not only refusing to authorize leave, "but discouraging an employee from using such leave."  29 CFR 825.220(b).

Comment:  The decision correctly posits that "interference" includes discouraging an employee from exercising FMLA rights.  The decision is curious in that it fails to address the employer's right to require an employee on FMLA leave to report periodically on the employee's status and intent to return to work, as permitted by 29 CFR 825.311(a).  

From the decision, it does not appear that the employer argued the point.  Of course, it is possible that an employer may abuse the right to require periodic status reports resulting in illegal interference.  For example, if the employee was provided a certification that stated unequivocally that an employee needed a set period of leave and would return on a date certain, an employer that nevertheless requested periodic status reports on a daily or weekly basis may be found to have crossed the line into impermissible interference.  

Unfortunately, it is not clear from the Terilliger decision why weekly status reports in that case interfered with the employee's FMLA rights. The decision simply fails to detail why it was unreasonable for the supervisor to require weekly status reports.  If the duration of approved leave is unknown weekly status reports would appear to be reasonable. 

The decision appears to be a product of the inferences favoring the nonmoving party (the employee) faced with the employer's motion for summary judgment.  I do not believe it stands for the proposition that weekly status reports are a per se violation of the FMLA no matter what the factual circumstances.  Rather, because periodic status reports are specifically permitted by the FMLA, there will be some situations - particularly where the duration of the employee's FMLA absence is unknown - where weekly status reports do not interfere with an employee's FMLA rights.    

 

 

"Heads-Up" That Employee "Might" Take FMLA Leave Insufficient to Invoke FMLA Protections

Upon learning that his wife was pregnancy and due in early 2008, Chad Wilson told his supervisor that he might need to take leave to care for his newborn if his mother-in-law was unavailable.  Wilson was subsequently terminated for dismissing his supervisor's concerns about Wilson''s failure to follow the chain of command regarding a pay issue. 

Wilson sued alleging that his termination was in retaliation for exercising FMLA rights.  He argued that he engage din FMLA-protected activity by requesting leave to care for his child.  The FMLA provides that an employee must "provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave."  29 CFR 825.302(c). 

The Fifth Circuit found that Wilson failed to provide adequate notice of the need for FMLA leave.  Wilson, the Court observed, " never informed Noble that he intended to take leave, only that he "might" need to take leave and that there was a "possibility" that he would need to take leave."  The Court held that these comments were insufficient to make his employer aware that he needed FMLA-qualifying leave.

The Court also found that Wilson failed to notify his employer of the "anticipated timing and duration" of any leave.  Wilson conceded that he did not get into any specifics as to who, what, when, or where of the leave.  Telling his supervisor that he "might" need to take leave "early in the year after the baby was here" failed to inform the employer of the anticipated timing and duration of the leave, the Court held.

The Court held that Wilson failed to establish that his removal was in retaliation for requesting FMLA leave.

Wilson v. Noble Drilling Service, Inc., 10-20129 (5th Cir. Dec. 23, 2010)

Comment:   While employees need not invoke the FMLA by name when requesting leave, they must provide their employer with sufficient information to alert the employer that FMLA leave may be needed.  Telling an employer that you "might" or "possibly" may need FMLA leave, even for an FMLA-qualifying reason, is not sufficient.  To be a valid request, courts also want more specificity in terms of the timing and duration of the leave. Employees do not invoke the protections of the FMLA by telling your employer that you may need leave at unnknown time in the future.  To invoke the FMLA, employees need to provide more specifics, not less, when requesting leave.   

Verizon FMLA settlement may exceed $6 million

Verizon Communications, Inc. settled a class action lawsuit with the California Departmen of Fair Employment and Housing for up to $6,011,190.00.  The suit alleged that between 2007 and 2010 Verizon denied or failed to timely approve class members' requests for leave for their own serious health condition, to care for a family member with a serious health condition, or to bond with a child. The suit was brought under California's version of the FMLA, which is very similar to the federal Family and Medical Leave Act.  Verizon also agreed to review and revise its leave policies and procedures, and to train all California managers, supervisors and human resource personnel on legally compliant CFMLA procedures.  Verizon did not admit to any wrongdoing in the settlement.

http://www.centralvalleybusinesstimes.com/templates/print.cfm?ID=16984

Comment:   The settlement undoubtedly does not include Verizon's time and expense in defending the suit, which likely added another million dollars to the total tab. 

Like the California FMLA, the federal FMLA allows aggrieved employees to file class action lawsuits for violation of their FMLA rights.  Employers would be well-advised to continualy monitor their leave policies to ensure they remain in compliance with ever-changing FMLA laws.  As evidenced by Verizon, failure to do so may result in very expensive and time consumming litigation.