Family Medical Leave Act (FMLA)

Fired for F-Bombs?

Posted on April 20, 2016

The Situation: You have received some reports that one of your supervisors is demeaning and hostile toward employees and “drops f-bombs on a daily basis.”  You investigate the complaints and determine that the complaints are substantiated.  You counsel the supervisor but don’t take any formal disciplinary action. The supervisor then lets you know he may be asking for FMLA leave.  In the meantime, you receive more complaints about the vulgar language and conduct and you decide to fire the employee. Will he be able to make an FMLA interference claim?…

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Did She Quit or was She Fired? In FMLA Context, Could Mean Liquidated Damages

Posted on March 16, 2016

The Situation: Your HR Director is under a lot of stress—both based on some personal issues and some issues between her and the CEO. According to the CEO, during a heated conversation, she quits. She claims she just told the CEO that she was thinking of quitting and that she was actually fired when she subsequently tried to request FMLA leave based on psychological distress. What sort of FMLA claims could you face?…

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Get your story straight—employer’s change in explanation can be evidence of pretext

Posted on July 10, 2015

Yet again, an employer is burned by asserting inconsistent reasons for the termination of an employee.  In a recent case, the Eighth Circuit Court of Appeals found that an employee had presented sufficient evidence of an unlawful termination based on his use of FMLA leave where the employer offered differing stories as to the reason for the termination.  Hudson v. Tyson Fresh Meats, Inc., 2015 U.S. App. LEXIS 8479 (8th Cir. 2015).…

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DOL Amends Definition of Spouse in FMLA Regulations

Posted on February 27, 2015

The big news from the Department of Labor this week was the amendment of the definition of “spouse” in the regulations applying the FMLA. Of course, in 2013, the Supreme Court found that Section 3 of the Defense of Marriage Act (“DOMA”) was unconstitutional in United States v. Windsor, 570 U.S. ___ (2013). Following this decision, President Obama directed the Cabinet to review all relevant federal statutes to implement the decision, including as it related to federal benefits and programs. Soon after, the DOL announced that under the definition of spouse at that time, eligible employees would be able to take leave under the FMLA to care for a same-sex spouse, but only if the employee resided in a state in which same-sex marriage was recognized.…

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No FMLA Retaliation Where Employer Can Show Employee Terminated for Improperly Accessing Supervisor’s Email

Posted on October 10, 2014

The decision of the United States District Court for the Western District of Virginia in the case of Downs v. Winchester Medical Center, et al., No. 5:13cv00083 regarding what constitutes a claim for interference in violation of the FMLA was the topic of a posting from a few months ago. The district court had found that while the plaintiff had properly stated a claim for retaliation in violation of the FMLA based upon these allegations, but that her claims not support a claim for FMLA interference.   Last month, the district court granted summary judgment to the employer, finding that the employer had a legitimate, nondiscriminatory reason for the termination of the employee, namely, her inappropriate accessing of her supervisor’s email, and thus that her retaliation claim failed as a matter of law. Downs, Memorandum Opinion (August 18, 2014).…

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Expert Testimony Not Necessary to Support FMLA Claim

Posted on August 29, 2014

In order to be entitled to FMLA leave, an employee must be able to show that he or she is afflicted with a serious health condition and that the condition renders him or her unable to perform the essential functions of her job. But is a plaintiff who has brought a claim under the FMLA required to present expert testimony verifying that a serious health condition rendered him or her unable to work? Recently, the Seventh Circuit Court of Appeals reversed the district court’s award of summary judgment to an employer on this issue, finding that expert testimony is not necessary in order to make this showing. Hansen v. Fincantieri Marine Group, LLC, et al., No. 13-3391 (7th Cir. August 18, 2014).…

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Right to FMLA Leave Not Forfeited Based on Failure to Provide Anticipated Duration

Posted on July 25, 2014

If an employee properly requests FMLA leave, but fails to advise her employer of how long she plans to be out, is the employer obligated to hold the position open? Late last month, the Seventh Circuit decided that yes, in a situation involving unforeseeable leave, the employer is still obligated to allow the employee to come back to work, provided she has not used more than 12 weeks of leave, despite her failure to provide information regarding the duration of her leave. See Gienapp v. Harbor Crest, et al., No. 14-1053 (7th Cir. June 24, 2014).…

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DOL Proposed Rule Redefines “Spouse” Under FMLA

Posted on July 3, 2014

In the wake of the United States Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), the Department of Labor has issued a proposed rule changing the definition of “spouse” under the FMLA. This proposed rule, issued on June 20, 2014, would insure that all eligible employees who are legally married, including both same-sex or opposite sex marriages, will be entitled to protection under the FMLA.…

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FMLA Interference v. Retaliation—No Interference Claim Where No Denial of FMLA Benefits

Posted on June 20, 2014

In the case of Downs v. Winchester Medical Center, et al., No. 5:13cv00083, the United States District Court for the Western District of Virginia addressed the question of what constitutes a claim for interference in violation of the FMLA.  The plaintiff in this case asserted claims of both interference and retaliation in violation of the FMLA.  However, the only allegations supporting the interference claims were the allegations of harassment, negative reviews, discipline and termination that also supported her FMLA retaliation claim. The court agreed that while the plaintiff had properly stated a claim for retaliation in violation of the FMLA based upon these allegations, they did not support a claim for FMLA interference.…

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Request for Vacation Not Protected by FMLA and Cannot Support Interference Claim

Posted on April 11, 2014

Does an employee’s request for leave have to be protected by the FMLA to give rise to a potential interference or retaliation claim? Last month, the Eleventh Circuit answer said yes in the case of Hurley v. Kent of Naples, Inc., et al., No. 13-10298 (11th Cir. 2014). Hurley was employed as the CEO for Kent of Naples, a company providing security services. About seven years into his employment, Hurley sent an email to his superior with the subject line “Vacation Schedule,” providing a vacation schedule for the next two years consisting of eleven weeks of vacation. His superior responded via email that the vacation request was denied and asking Hurley to schedule a meeting to dismiss the matter further.…

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