U.S. Supreme Court To Review Whether States Have Immunity To the FMLA's Self-Care Leave Provision

On June 27, 2011, the United States Supreme Court granted a state employee's petition to review a ruling by the Fourth Circuit Court of Appeals denying his FMLA claim.  In Coleman v. Maryland Ct. of Appeals, the Court will consider whether states enjoy Eleventh Amendment immunity from suit under the FMLA's self-care leave provision. 

The Supreme Court previously ruled in Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003), that state employers are constitutionally subject to the FMLA provision concerning leave to care for a family member with a serious health condition.  In denying Coleman's FMLA claim, the Fourth Circuit ruled that courts must analyze each FMLA provision separately, and that states have Eleventh Amendment immunity to FMLA claims premised upon the Act's self-care provision.  While the Fourth Circuit recognized that Congress intended to abrogate states' immunity when it passed the provision, it held that the provision was not a valid exercise of Congress' power to enforce the Fourteenth Amendment.  The Fourth Circuit also noted that there is no split in the circuits; every federal circuit court to have considered the issue has held that states are immune from the Act's self-care leave provision.



Federal Court in Pennsylvania Upholds Termination of Employee on FMLA Leave Who Took A Trip To Cancun In Violation of Company Policy

On May 19, 2011,  the United States District Court for the Western District of Pennsylvania held in Pellegrino v. Communication Workers of America that an employer's enforcement of its rule requiring that employees not travel outside the immediate vicinity of their homes (with some limited exceptions, including for medical treatment) during paid leave did not violate the FMLA.

The plaintiff, Denise Pellegrino, was on an approved FMLA leave for a hysterectomy surgery on October 2, 2008.  On October 16, 2008, while on leave, plaintiff traveled to Cancun for one week.  The plaintiff was terminated for violating company policy by traveling to Cancun.  The plaintiff sued, alleging that the company violated the FMLA by interfering with her FMLA rights.

In holding that the company's application of its rule prohibiting travel did not violate the FMLA, the court explained that "the FMLA does not shield an employee from termination if the employee was allegedly involved in misconduct related to the use of the FMLA leave, so long as these policies do not conflict with or diminish the rights provided by the FMLA."   The court further explained that the policy was designed to curb abuses, and did  not interfere with or discourage employees from exercising their FMLA rights.

Employers that would consider adopting a similar policy should ensure that the policy would not interfere with or discourage employees from exercising their FMLA rights, and that employees have clear notice of the policy before it is enforced. 




Ninth Circuit Takes on Definition of "Successor-in-Interest" Under FMLA

In an opinion issued on September 27, 2010, the Ninth Circuit tackled the question of when a new employer is a successor-in-interest to a former employer under the FMLA.  This is a critical issue, because if an employee goes to work for a company deemed to be a successor-in-interest under the FMLA, the employee need not accrue an additional 12 months of tenure to become eligible for leave under the FMLA. 

In Sullivan v. Dollar Tree Stores, Inc., the plaintiff was employed by Factory 2-U before being hired by Dollar Tree, which bought the lease to the building where she worked and opened its own store there after Factory 2-U went bankrupt.  Dollar Tree did not purchase any assets of Factory 2-U other than the leaseholds. 

Within a year of becoming employed by Dollar Tree, the plaintiff sought leave under the FMLA, which was denied, and she resigned.  She later was reinstated by Dollar Tree, but filed suit against it, seeking her lost wages during the period that her resignation was in effect. 

The district court held that Dollar Tree was not a successor-in-interest to Factory 2-U and granted summary judgment to Dollar Tree.  The Ninth Circuit affirmed.  Applying the eight factors established by the Department of Labor to determine whether a company is a successor-in-interest under the law, the court concluded that, while some factors slightly suggested successorship, on balance successorship had not been established.  In particular, the court noted that when it opened its store Dollar Tree brought in many of its own employees, trained employees in its own methods, changed the plaintiff's job title and responsibilities, and brought in all new inventory. 

The Ninth Circuit joins only a handful of federal courts that have addressed this issue.  When merging with or purchasing the assets of another company, employers should be aware that they may become a succesor-in-interest to certain employees of the former employer.

Third Circuit Panel Rules That Lay Testimony Can Create Fact Issue In FMLA Cases

My law partner, Wayne Pinkstone, recently was quoted in Inside Counsel regarding the recent decision of the United States Court of Appeals for the Third Circuit in Schaar v. Lehigh Valley Health Services, in which the court held that lay testimony in conjunction with expert testimony can create a material issue of fact regarding the length of an employee's incapacitation. 

Significantly, this decision may make an employee's self-diagnosis relevant to the issue of how long he or she may be incapacitated.  Employers should be careful not to dismiss out-of-hand employees' comments regarding how long their anticipated leave may run, and ensure that they follow their policies when responding to requests for FMLA leave.


A Recent Case Holds Lessons for Employers Faced with Suspicious FMLA Leave Requests

In Moran v. Redford Union School District, the United States District Court for the Eastern District of Michigan recently held that an employee with a history of absenteeism who requested FMLA leave but took a vacation in Florida was not retaliated against in violation of the FMLA when she was terminated for refusing to sign a last chance agreement.  

The plaintiff became employed by the School District as a part-time bus driver beginning in 2001.  She was subject to a collective bargaining agreement, which provided that part-time bus drivers were entitled to five days of paid leave per year.  She had a history of absenteeism and related warnings.  On March 10, 2008, she received a verbal warning for absenteeism.  In the disciplinary meeting, she requested to take two days of leave on March 30, 2008 and April 1, 2008 to travel to Florida using airline tickets that she had previously purchased.  Her request was denied. 

A few days later, the plaintiff had an appointment with her physician, who diagnosed her with acute situational anxiety based primarily upon her complaints of work-related stress.  He provided her with a note indicating that she could not work from March 17, 2008 through April 7, 2008.  She requested a leave of absence premised upon her physician's note, and did not report to work during that time frame.  From March 20, 2008 through April 1, 2008, she traveled to Florida.

Suspecting that the plaintiff fabricated her leave request to enable her to travel to Florida, the School District attempted to contact her at home on several occasions during her leave and she did not return any messages.  Upon her return from Florida, she was suspended pending an investigation into the reason for her absence.  The union attempted to negotiate a last chance agreement, whereby the plaintiff would be reinstated and agree, among other things, that any further absences would result in termination, and she would forgo any grievance in the event of her termination.  The plaintiff refused to sign the agreement and was terminated. 

The School District argued that the plaintiff did not engage in statutorily protected activity under the FMLA because she fabricated her alleged need for leave, and that it had a legitimate non-discriminatory reason for terminating her--i.e. her failure to sign the last chance agreement. 

While the Court held that a jury could find that there was nothing plainly inconsistent about traveling to Florida while suffering from acute situational anxiety (some might disagree), it held that the School District had an honest belief that the plaintiff has misused her FMLA leave, and its termination of the plaintiff for failing to sign a last chance agreement was not a pretext for discrimination.

This case provides significant guidance to employers who are contemplating disciplining employees whom they suspect of misusing FMLA leave.  It also suggests that last chance agreements may be a viable option where an employee has a history of absenteeism and the employer has an honest belief that the employee has misused FMLA leave. 

Employers should consult their counsel when evaluating whether to discipline an employee for suspected misuse of FMLA leave. 

Employers Beware: Granting An Ineligible Employee FMLA Leave May Bar An Employer From Later Asserting A Defense of Non-Coverage

A federal court recently considered whether an employer that granted an employee's request for FMLA leave was later equitably estopped from arguing that the employee was ineligible for leave under the FMLA because the employee had relied on the leave designation to his detriment.  

In Harvey v. Wal-Mart Louisiana LLC, 2009 WL 3171099 (W.D. La. 2009), the plaintiff suffered from degenerative arthritis in his lower back.  He took two leaves of absence in 2005.  The first leave from February 22 to April 12 was due to back pain, and the plaintiff wanted to evaluate whether to have surgery.  The plaintiff decided not to have surgery, and his leave was characterized as a "personal", not medical, leave.  The second leave began on September 1 and was scheduled to end on November 19.  The plaintiff requested to return to work early, but his request was denied.  He took the second leave to career his 38-year-old daughter, who was suffering from intracranial hypertension, which inhibited her ability to care for her two minor children.  The leave was counted as FMLA leave, and approved as such by the plaintiff's supervisor.  Despite this, the plaintiff was not restored to his prior position for six weeks following his leave, and he sought back pay for the break in service, which was denied by his employer. 

The plaintiff filed suit against Wal-Mart alleging, among other things, that it violated the FMLA by failing to restore him immediately to his prior position following his second leave of absence.  Wal-Mart argued in its motion for summary judgment that the plaintiff was not eligible for FMLA leave for his second leave of absence because he had not worked 1,250 hours during the 12-month period prior to his leave, and that the reason for his leave--to care for his grown daughter and her children--did not qualify for FMLA leave.  The plaintiff countered, in part, that Wal-Mart was equitably estopped from asserting a defense of non-coverage because it had previously approved his second leave of absence as FMLA leave and he had relied on the designation to his detriment. 

The Harvey court held that Wal-Mart was not equitably estopped from asserting the plaintiff's non-coverage as a defense.  In so holding, the court relied upon the fact that the plaintiff was not aware until after his second leave of absence that his leave had been designated as FMLA leave.  Accordingly, the court held that he did not rely upon any representation by Wal-Mart in deciding to take his second leave of absence.  Moreover, the court held that the fact that Wal-Mart did not approve the plaintiff as an "eligible employee" under the FMLA, and only counted the leave as FMLA leave, further required a finding that Wal-Mart could assert a defense of non-coverage.  Ultimately, the court held that the plaintiff had not established that he had worked 1,250 hours in the 12-month period prior to his second leave of absence, and he therefore had no rights under the FMLA.

This case is instructive not so much for its holding, as for its discussion of the instances in which equitable estoppel would apply and bar an employer from asserting a defense of non-coverage.  If the plaintiff had been aware prior to or during his second leave of absence that his leave had been designated as FMLA leave, and that he was determined to be an eligible employee under the FMLA, and he did not return to work as a result, this case suggests that Wal-Mart would have been barred from subsequently arguing that the plaintiff was not eligible for FMLA leave.  Employers need to ensure that, when confronted with a request for potentially FMLA-qualifying leave, they assess carefully whether the employee is eligible for leave, and whether the reason for the leave is FMLA-qualifying.  If not, they may be barred from subsequently arguing in a lawsuit that the employee was ineligible for FMLA leave.    





Third Circuit Holds That Hours Worked At Home Count Towards the 1,250-Hour Eligibility Threshold If the Employer Had Actual or Constructive Notice of the Hours Worked

Today, in Erdman v. Nationwide Insurance Co., the United States Court of Appeals for the Third Circuit reversed summary judgment for the defendant on the plaintiff's FMLA interference and retaliation claims, holding that a reasonable jury could have concluded that the defendant miscalculated the plaintiff's hours worked when it determined that she did not meet the 1,250-hour threshold. 

To be eligible for leave under the FMLA, an employee must have worked at least 1,250 hours during the previous 12-month period.  In Erdman, the plaintiff initially requested to use her vacation time in August to prepare her child with Down Syndrome for school.  When her request was denied, she requested FMLA leave for the period of July 7 to August 29.  Approximately one month after she requested leave, but before she took any leave time, she was terminated after she used profanity during a telephone conversation that was monitored for quality control purposes.  The plaintiff alleged that the employer's motives for terminating her were pretextual, and that she was actually fired for requesting FMLA leave. 

The district court granted summary judgment to the employer on the FMLA claims on the grounds that the plaintiff had not met the 1,250-hour threshold to be eligible for leave under the FMLA.  In calculating the plaintiff's hours worked during the previous 12-month period, the district court declined to include certain hours that the plaintiff worked at home after the employer had advised her to simply "put in the hours that . . . you're supposed to put in and nothing more than that," and found that the employer could not have had constructive notice of those hours.  

Under the FMLA, all work that "the employer knows or has reason to believe . . . is being performed" counts toward the 1,250-hour threshold requirement.  See 29 C.F.R. Section 785.12.  Hours worked off-site or beyond an employee's schedule count if the employer "knows or has reason to believe that an employee is continuing to work extra hours."  See 29 C.F.R. Section 785.11.  Actual knowledge is not required; constructive knowledge will suffice. 

In Erdman, the Third Circuit found that a reasonable jury could conclude that, although the employer had communicated to the plaintiff that she would not be paid for any hours worked at home, she understood that she could continue to accrue "comp" time by working extra hours.  Moreover, the court concluded that her employer had actual and/or constructive notice that she was continuing to work from home until it explicitly prohibited her from working more than her regularly scheduled hours on February 10,2003.  Counting all of the hours that the plaintiff worked at home prior to February 10, 2003, the Third Circuit found that she had accumulated 1,282.25 total hours during the prior 12-month period. 

The Third Circuit also considered the defendant's argument that, because the plaintiff had never taken FMLA leave, she could not pursue a retaliation claim.  The defendant relied, in part, on the language of the statute, which provides that employers are prohibited from "discriminating against employees or prospective employees who have used FMLA leave."  See 29 C.F.R. Section 825.220(c) (emphasis added).  The Third Circuit held that there is no requirement that the employee "use" FMLA leave in order to bring a claim of retaliation; the employee need only have invoked his or her FMLA rights.  As such, the Third Circuit held that firing an employee for a valid request for FMLA leave may constitute interference with the employee's FMLA rights as well as retaliation against the employee. 

The Erdman decision is instructive for several reasons.  First, it puts employers on notice that, if they have actual or constructive notice that an employee is working from home or otherwise putting in extra hours, those hours must be included for purposes of calculating the employee's eligibility for FMLA leave.  Broken down by week, an employee needs to work only approximately 24 hours per week to meet the 1,250-hour threshold.  If the calculation is close, prudent employers will err on the side of assuming that the employee is eligible for FMLA leave.  Second, the decision makes it clear that an employee need not use FMLA leave in order to preserve a retaliation claim; the employee need only request FMLA leave or otherwise invoke his or her FMLA rights in order to bring a retaliation claim.  Employers need to be aware of the significant risk that they will be faced with a retaliation claim if they terminate or otherwise take some adverse employment action against an employee who has invoked his or her FMLA rights, and there is some causal connection between the two events. 



Employers Need Not Be Mind Readers: Recent Case Law Provides Guidance Concerning What Constitutes Sufficient Notice of the Need for FMLA Leave

In Scobey v. Nucor Steel-Arkansas, 2009 U.S. App. LEXIS 19094 (8th Cir. Aug. 25, 2009), the United States Court of Appeals for the Eighth Circuit recently affirmed the dismissal on summary judgment of FMLA claims brought by an employee who allegedly notified his employer that he had a drinking problem, but did not initially request a leave of absence for treatment. 

The plaintiff worked in the defendant employer's steel mill for seven years.  Initially, he requested leave to attend the funeral of his former father-in-law.  The next day, he called the employer while intoxicated, and said that he was "done, through" and intended to resign.  On the following day, he spoke with his direct supervisor, told him that he had had a nervous breakdown, and hung up the telephone.  The supervisor had the impression that the plaintiff was intoxicated.  The plaintiff called the shift manager the same day and reported that, due to the death of his former father-in-law and some personal problems, he would not be back at work for a while.  He missed work the next two days for a total of four days. 

The next day, the plaintiff called another supervisor and told him that he could not recall the previous four days and needed help.  He subsequently treated with a physician, and notified the employer's HR manager that he had an alcohol problem and was depressed.  He received in-patient treatment for alcoholism and depression, and was later discharged to outpatient care.  While the employer did not designate the leave time as FMLA leave, it paid the plaintiff for his leave of absence.

Subsequently, the plaintiff was suspended for three days and demoted for having had four consecutive, unexcused absences.  He later stopped reporting for work, and sued his employer for FMLA interference and retaliation.  The district court granted the employer's motion for summary judgment on the ground that the plaintiff failed to provide notice that his 4-day absence was covered by the FMLA. 

In evaluating the plaintiff's claims, the Eighth Circuit noted that, under the regulations in effect at the time of the leave of absence and prior case law, the plaintiff needed to provide notice of the need for FMLA leave.  (Employers should note that the current language of 29 C.F.R. Section 825.303(b), which became effective on January 16, 2009, is more restrictive, and requires employees to specifically reference either the qualifying reason for leave or the need for FMLA leave.)  Specifically, the plaintiff needed to provide information to his employer to suggest that his health condition could be serious. 

The Eighth Circuit held that the plaintiff did not provide notice of the need for FMLA leave with respect to his four -day absence.  The court explained that initially the plaintiff requested time off to attend a funeral, which is not protected by the FMLA.  Later, he called while intoxicated and said that he wanted to resign, which was not notice that he needed time off from work.  Moreover, the court explained that, while absences for treatment for alcoholism are covered by the FMLA, absences caused by the use of alcohol are not.  The Eighth Circuit's discussion of the "constructive notice" doctrine is also instructive. 

While employers need to be proactive about designating leaves of absence as FMLA-eligible where employees notify them of the need for time off due to a serious health condition, the FMLA does not require them to be mind readers.  Prudent employers will document the reasons provided by employees for their absences from work, and offer FMLA leave as soon as it becomes apparent that an employee is eligible for such leave.


Requesting Doctors' Notes for Intermittent Leave Absences Within Three Days Can Get Employers Into Hot Water

Employers continue to be frustrated with the limited options they have to curb apparent abuses of intermittent FMLA leave.  One of the most common scenarios involves an employee who is certified as eligible for intermittent leave, has repeated absences, and takes the position without documentation that the absences qualify as intermittent FMLA leave.  To counteract this fact pattern, some employers require employees to submit doctors' notes confirming that the absences in question are covered by the FMLA. 

A recent opinion from the United States District Court for the Southern District of Ohio calls into question the practice of requesting doctors' notes within a short timeframe to establish that absences are covered by the FMLA.  In Smith v. CallTech Communications, LLC, No. 2:07-cv-144, 2009 U.S. Dist. LEXIS 48518 (June 10, 2009), the plaintiff presented a certification from her health care provider and was approved for intermittent FMLA leave due to her chronic major depressive disorder and dysthymic disorder.  The defendant employer used a point system that governed not only employee attendance, but other infractions and performance-related issues.  Under the point system, an employee received a written notification once she accrued four points.  Once she accumulated five points, she received a written warning and, at six points, she was subject to termination.  The plaintiff received several notifications that she had reached the six-point level due to her absences.  Under the system, the points could be removed for FMLA-related absences if the plaintiff brought in a doctor's excuse, even if the note excused several absences retroactively. 

After accumulating 6.75 points, the plaintiff was advised on May 28, 2006 that she would be terminated unless by May 31, 2006 she reduced her point level below six by providing a doctor's verification that at least some of her absences were the result of her medical condition.  The plaintiff told her supervisor that she would not be able to obtain the necessary documentation within three days.  The plaintiff stopped reporting to work after May 31, 2006, and was terminated. 

The plaintiff sued, in part, under the FMLA, alleging that the defendant interfered with her FMLA rights.  The court denied the defendant's motion for summary judgment as to her FMLA claim.  The court held that, while the defendant "clearly was entitled to some form of medical documentation for [the plaintiff's] absence even through she had been approved for FMLA leave . . . and had verbally informed her supervisor that her absences were related to her condition," the FMLA requires only that an employee provide medical documentation in a timely manner.  While the court did not require that the plaintiff be afforded 15 days to provide the doctors' notes (as would be required for a certification from a health care provider), it held that she needed to be provided with a reasonable amount of time under the exigencies of the situation to obtain any notes from her doctor.  The court further held that allowing the plaintiff only three days to obtain medical documentation for her absences was unreasonable as a matter of law. 

While this case appears to sanction the practice of requiring doctor's notes to substantiate the need for intermittent FMLA leave when those notes are requested pursuant to company policy, it also teaches that employers need to provide employees with a reasonable time period in which to comply with the request.  Given the court's reliance on the 15-day certification period as a patently reasonable timeframe, prudent employers would permit employees to submit doctors' notes within 15 days to avoid termination pursuant to company attendance policy. 



Seventh Circuit Holds That Termination of Employee Whose Performance Deficiencies Are Discovered During His FMLA Leave Does Not Violate FMLA

It's the age-old story: an employee goes on FMLA leave, and the employer discovers that the employee has serious performance problems.  More often than not, the employer makes the discovery when it hires a temporary employee to perform the employee's duties in her absence. 

A recent case tackled this precise scenario.  In Cracco v. Vitran Express, the United States Court of Appeals for the Seventh Circuit held that an employer that terminated an employee for performance problems that it discovered while the employee was on FMLA leave did not violate the FMLA.  The employee, who was a manager for a trucking company, requested and was granted FMLA leave for his own serious health condition.  During his absence, the company hired temporary replacements, who uncovered numerous problems in the manager's department.  A subsequent investigation revealed that the manager had deliberately disguised late and damaged deliveries.  On the day that the manager was to return from FMLA leave, the company terminated his employment. 

The manager sued the company, alleging retaliation and interference with his FMLA rights.  The district court granted the company's motion for summary judgment.  The Seventh Circuit affirmed.  With respect to the retaliation claim, the court held that there was no causal link between the request for leave and the termination.  Moreover, the court explained that the fact that the leave permitted the employer to discover the manager's performance deficiencies could not be a bar to its ability to terminate the manager.  The court also held that the manager failed to establish a prima facie case under the indirect method of establishing retaliation, because he failed to prove that he met his employer's legitimate job expectations at the time he was terminated.  As to the interference claim, the court explained that an employee is not entitled to reinstatement if the employer can present evidence to show that the the employee would not have been entitled to his position even if he had not taken leave.

In a recent blog, I discussed the circumstances in which an employer can terminate an employee who has requested FMLA leave.  The Cracco decision reinforces, in particular, the fact that documentation is key to defending the termination of an employee who is on FMLA leave.  The Seventh Circuit relied heavily on the fact that the company presented sufficient evidence, after a thorough investigation, of the manager's misconduct.  Employers would be wise to ensure that their reasoning for terminating an employee on FMLA leave, and their documentation of the basis for the decision, are iron-clad.

Termination for Taking FMLA Leave Constitutes Retaliation

The Sixth Circuit Court of Appeals has held in Bryant v. Dollar General Corp. that the firing of an employee because the employee took FMLA-guaranteed leave constitutes retaliation under the FMLA.
The employer argued on appeal that the relevant statutory text pertains only to situations in which an employee has "opposed any practice made unlawful" by the FMLA.  The Sixth Circuit based its determination on the overwhelming consensus of case law, the nature of the statutory scheme, and the FMLA's legislative history. 
See the link below to the Sixth Circuit's Opinion in Bryant v. Dollar General Corp.


No FMLA Certification for Reduced Schedule Leave, No Retaliation Claim

The Seventh Circuit Court of Appeals recently held in Ridings v. Riverside Medical Center that an employee did not establish a claim for retaliation, where the employee was permitted to work a reduced schedule but failed to comply with the employer's request to either submit her FMLA paperwork or work a full schedule. 

The employee worked with the employer for several years and received good performance reviews.  After being diagnosed with an illness, she began working a modified workday.  After permitting the reduced schedule for some time, the employer informed her that she needed to work a full schedule.  When she presented a note from her physician that she could not work a full schedule, the employer notified her that she needed to submit FMLA paperwork if she wanted to continue to a work a modified schedule.  The employee failed to provide the FMLA paperwork after multiple requests, and eventually was terminated. 
The employee argued that she established an inference of discrimination because her performance did not suffer when she worked a reduced schedule.  The Seventh Circuit held that the employer had the right to request the FMLA forms, and it could not be deemed to have retaliated against the employee by asking her to fulfill her FMLA obligation.
See the link below for the Opinion in Ridings v. Riverside Medical Center