In Fialho v. Girl Scouts of Milwaukee Area, Inc., No. 06-C-1218, 2007 U.S. Dist. LEXIS 31780 (E.D.Wisc. April 30, 2007), the Girl Scouts moved to dismiss the employee's FMLA retaliation claim as time-barred. Fialho was in an auto accident on March 17, 2004 and was granted unpaid medical leave under the FMLA. She was cleared to return to work with no restrictions on August 23, 2004. However, she missed work on August 31, 2004 and was terminated on September 1, 2004.
The Girl Scouts argued that the complaint was filed more than two years after her termination and, therefore, was untimely. It also argued that the three-year statute of limitations for "willful" FMLA violations did not apply because management was unfamiliar with the FMLA and the proper procedures for processing FMLA claims.
The Court found that the facts were sufficient to state a timely willful violation. According to the Court:
Unfamiliarity with proper FMLA procedures does not preclude familiarity with the FMLA in general. Fialho's complaint at least arguably states a claim for retaliation, in that she was apparently attempting to exercise her FMLA rights on the day she was terminated by brining in a doctor's excuse for her absence. Such a claim would fall under the FMLA's extended three-year limitations period.
Comment: Generally speaking, ignorance of the FMLA is not going to be an effective defense to a willful FMLA violation. Indeed, some courts have imposed double damages for willful FMLA violations where an employer argued, and established, that they were clueless when it came to their FMLA responsibilities. To avoid FMLA liability, covered employers must ensure that managers responsible for FMLA administration know what they are doing. Ignorance of the law is neither an excuse nor a defense to an FMLA claim.