The FMLA Blog

Absent Damages, Technical Violations of the FMLA Do Not Support Recovery

The FMLA does not afford an employee relief for technical violations of the Act absent proof that the employee was harmed by the employer's violation.  To demonstrate harm, an employee is not required to prove monetary damages.  However, they must be able to demonstrate some harm as a result of the violation.

In Demers v. Adams Homes of Northwest Florida, Inc., No. 08-13044, 2009 U.S. App. LEXIS 5844 (11th Cir. March 20, 2009) the employer violated the FMLA by denying the employee leave.  The employee was unable to articulate any harm suffered as a result of the denial.  In sustaining the award of summary judgment to the employer, the Eleventh Circuit observed that the FMLA does not entitle a plaintiff to recover for technical infractions of the FMLA absent damages.

Comment: To maintain a viable civil suit an employee must be able to demonstrate some harm or prejudice resulted from the FMLA violation.  The prejudice need not result in a monetary loss to the employee, but it might.  For example, the employee may have been required to use paid leave rather than unpaid FMLA leave for the absence.  Or the employee may have been subject to a cancellation fee for a missed medical appointment.  Absent prejudice, the employee's FMLA claim, even if the employer technically violated the FMLA, will likely be dismissed.               

Threatening Termination for Any Leave After Expiration of FMLA Leave Interfered With Employee FMLA Rights

In response an employee's request for additional FMLA leave, the employer allegedly asked "Does this mean you're going to take another three months off?"  Plaintiff had a history of FMLA leave usage, including taking 3 months off in the preceding year following foot surgery.  The following day, the supervisor sent a letter to the employee stating:

Upon calculation of lost time due to FMLA, it has been determined that until September 28, 2006, you have five weeks of FMLA time left available to you per federal law guidelines.  Please be advised that any time taken beyond the five weeks of remaining leave between now and September 28, 2006 will result in the loss of benefits and termination of employment under the law.

The employee was terminated four days later, before she took any FMLA leave.  The employee sued alleging retaliation and interference with FMLA rights.  The employer moved for summary judgment arguing that the employee was terminated for a reason independent of the FMLA (bad attitude).

In denying summary judgment to the employer, the court noted the the supervisor's statement was susceptible to various interpretations depending on the tone it ws given, "from solicitous of Plaintiff's well-being, to merely information-seeking, to annoyed or resentful." Similarly, the court noted that the letter could be reasonably construed as simply informing Plaintiff of her remaining FMLA leave time, or as an expression of displeasure of her intent to request more FMLA leave.  For purposes of summary judgment, where all inferences favor the non-moving party, the court went with the latter interpretation.

The court opined that the combination of the supervisor's statement, the threatening letter, and the fact that the employee was terminated four days later before she could take any FMLA leave, suggested that the employer was displeased with the employee's request for additional FMLA leave.  The court noted that the FMLA prohibits an employer from interfering with or retaliating for an employee's attempt to exercise FMLA rights.

Almeida v. Althena Health Care Associates, Inc., No. 3:07cv517 (PCD), 2009 U.S. Dist. LEXIS 15103 (D. Conn. Feb. 26, 2009).

Comment:   A common misconception by employers is that FMLA protections end once the employee  uses up their 12-week entitlement.  The Almeida cases illustrates that this is simply not the case.  How an employer treats an employee's use of unprotected, non-FMLA leave may, in some circumstances, violate the FMLA.  This is particularly true where, as in Almeida, the employer threatens the employee with termination for the first absence after FMLA leave is exhausted, followed a few days later by terminating the employee anyway before any FMLA leave is used.

The denial of summary judgment does not mean that the employer will ultimately be found liable for violating the FMLA.  It does, however, make resolution of the claim, whether by settlement or trial, exponentially more expensive and time consuming.  This expense, moreover, may have been avoided had supervisors been properly trained about employee FMLA rights and protections.  As a free practice tip, putting your illegal threats in writing is something to be avoided.         

"Buyer's Remorse" Insufficient to Establish Interference Claim Where Employee Knowingly Elected Not to Exercise FMLA Rights

In Righi v. SMC Corp. of America, No. 07-cv-1064, 2009 U.S. Dist. LEXIS 15429 (C.D. Ill. Feb. 27, 2009), the employee requested leave to care for his mother, a diabetic who was hospitalized after accidentally took an overdose of mediation. At the time, SMC was aware that the employee was caring for his mother due to her medical condition.  SMC had approved leave for this purpose in the past. As a result of his mother's overdose, the Righi requested "a couple of days off" to make medical care arrangements for his mother. In the e-mail requesting leave, Righi mentioned that, although he could apply for FMLA leave, he did not want to do so at this time.  Instead, he asked for vacation.  On receipt of the e-mail, SMC made several unsuccessful attempts to contact Righi.  Righi admitted later that he turned off his cell phone for a week.  Righi was subsequently terminated for violating SMC's call-in policy.  Righi sued alleging interference with the FMLA.

Righi argued that his e-mail message referencing the FMLA was sufficient to place SMC on notice that he was, in fact, asking that his absence be covered by the FMLA.  In rejecting the argument and awarding summary judgment to SMC, the Court found that the burden of inquiry never shifted to SMC to determine if the absence might be covered by the FMLA. The Court found that SMC was not legally obligated to ignore the employee's own statement that he was not interested in applying for approved FMLA leave to cover his absence.  Nor was SMC required to persuade an employee to take FMLA leave where the employee has indicated they do not wish to.

Comment:  Employees who seek FMLA protections after they have knowingly elected not to exercise their FMLA rights in order to preserve the ability to use FMLA leave in the future have not fared well in the courts. To get over this high hurdle, employees would need to show that, for example, the employer failed to satisfy its notice requirements, or that the employer otherwise misled the employee regarding FMLA rights and responsibilities. 

The case is a reminder that an employee who decides to use non-FMLA leave in order to preserve it for future use risks discipline.