The FMLA Blog

Double Damages for Human Resource Director's Failure to Research FMLA Requirements Before Terminating Employee

A federal court doubled the damages awarded by a jury for violation of the FM LA because the employer failed to research whether a probationary employee was eligible for FMLA leave before terminating her.  

Melissa Brown was hired in November 2002 as a food service director for Plymouth House, a nursing home.  In August 2004, Plymouth contracted with Nutrition Management Services Co., to manage the food service.  Nutrition Management retained Brown to continue as food service director.  In October 2004, Nutrition Management terminated Brown after being informed that she was pregnant.  Brown filed a civil action against Nutrition Management for unlawful interference with her FMLA rights, among other claims.  Nutrition Management argued that it did not violate the FMLA because Brown was not eligible for FMLA leave.  The jury disagreed, awarding Brown $ 74,000 in back pay and damages under the FMLA.  

Brown subsequently filed a motion seeking $ 80,655.82 in liquidated damages.  Title I of the FMLA provides that a prevailing party is entitled to recover liquidated (double) damages equal to the amount of damages awarded for lost compensation plus interest unless the defendant can demonstrate that it acted in good faith on the belief that the actions or omissions was not a violation. 

The FMLA does not define what constitutes "good faith."  Courts, however, have looked to the standard developed under the FLSA, which contains nearly identical language.  Pursuant to that standard, reasonable good faith requires a defendant to take affirmative steps to ascertain the requirements of the law.  "A defendant employer's burden of proof is a difficult one to meet.  Double damages are the norm, single damages the exception."  Martin v. Cooper Electric Supply Co., 940 F.3d 896, 908 (3d Cir. 1991).

Nutrition Management argued that it acted on the good faith belief that Brown was not an eligible employee under the FMLA because her termination occurred during her probationary period.  As support, Nutrition Management offered the testimony of Scott Murray, an attorney with general knowledge of employment law and Nutrition Management's director of human resources.  Mr. Murray testified that he determined that it was "okay" to terminate Brown because she was "a brand new employee."  The Court found that Nutrition Management's reliance on Mr. Murray's cursory determination inadequate to determine whether Brown's prior employer was covered by the FMLA and, if so, whether Nutrition Management was a successor -in-interest.  The court observed:

Nutrition Management presented no evidence that it researched the requirements of the FMLA, or was otherwise aware of the factors governing whether the FMLA would apply to Brown's request for leave.  Nutrition Management, having made no legal inquiry into the requirements of the FMLA, had no reasonable grounds to believe Brown's termination was not a violation. 

Comment:  The employer's reliance on the HR director's general knowledge of employment law in lieu of researching the FMLA cost it an extra $80,000.  To avoid the presumption of double damages you must be in a position to truthfully testify that you conducted a reasonable inquiry into the requirements of the FMLA.  Actually reading the applicable FMLA regulations regarding the issue at hand would be a good start.  The decision reminds us of what they say about taking action based on assumptions.     

Brown v. Nutrition Management Services Co., No. 06-2034, 2009 U.S. Dist. LEXIS 4199 (E.D.Pa. Jan. 21, 2009), 

Review of Statute and DOL Regulations Sufficient to Avoid Liquidated Damages for FMLA Violation

The FMLA provides that a court shall award liquidated damages doubling the amount of lost compensation plus interest for violation of the FMLA.  An employer may avoid liquidated damages if it proves to the satisfaction of the court that: (1) it acted in god faith; and (2) the employer had reasonable grounds for believing that the act or omission was not a violation of the FMLA.  The employer bears the burden of establishing both good faith and reasonable grounds in order to avoid liquidated damages. 

In Cobb v. Contract Transport, Inc., No. 04-305-KSF, 2007 U.S. Dist. LEXIS 45043 (E.D.Ky. June 21, 2007), the employee established that the employer violated the FMLA. The issue before the court was whether to award liquidated damages.  In favor of an award of liquidated damages, the employee argued that the employer failed to establish good faith and reasonable grounds for its action because it failed to consult with an attorney, the Department of Labor, or the DOL FMLA regulations before terminating his employment in violation of the FMLA.  The Court disagreed. The Court noted that consultation with an attorney or with the Department of Labor was not required to establish good faith.  The Court found that the employer's review of the statute and DOL FMLA regulations, in light of its prior experience with the FMLA, was sufficient to establish good faith and reasonable grounds for believing (erroneously, as it turns out) that the employee was not covered by the FMLA and, therefore, termination of the employee was permissible.

Comment:  Consultation with an attorney is not required in order for an employer to demonstrate good faith.  Of course, it couldn't hurt either.  To avoid the FMLA presumption in favor of liquidated (double) damages, employers are going to want to show that they consulted with the DOL regulations, an attorney, and/or an FMLA expert before making an FMLA decision.