What Counts as Bad Faith Under the FMLA?
The Situation: An employee requests to use a month of FMLA leave based upon an injury and the request is approved. The employee tells HR that she has an appointment with her doctor on the day before she expects to return (which happens to be a Friday). During that doctor’s appointment, the employee is advised to stay out of work through Monday. But the employee does not notify the employer of this development—just shows up to work on Monday. If the employer deems the employee to have voluntarily resigned her position on Friday and thus terminates her employment that same day, is that a FMLA violation? And could it entitle the employee to liquidated damages?…READ MORE
FMLA Retaliation Claim Even Where Actual Decisionmaker Didn’t Know About Use of Leave?
The Situation: An employee requests and is approved for FMLA leave based on a mental health condition. While she is out, she accumulates a backlog of work. According to her supervisor, after she returns, she continues to have performance problems, including not meeting certain metrics and otherwise just not meeting his standards. Based on a recommendation from her supervisor, upper management decides to demote the employee. When performance issues continue, the owner decides to fire her, without any knowledge of her use of FMLA leave. Can this employee still make a case for retaliation under the FMLA?…READ MORE
Despite Serious Documented Performance Issues, Reference to Medical Leave May Mean FMLA Retaliation Claim
The Situation: An employee begins working as a sales consultant and from the beginning, has serious performance issues. She is given a number of warnings and even placed on an improvement plan. After she receives a final warning threatening termination if her performance does not improve, she submits a request for FMLA leave for some necessary surgery. The employer grants the request, but then terminates her soon after her return when it is clear her performance is not improving. But in the email sent up the chain recommending termination, the supervisor references the request for medical leave. Is this enough to support a retaliation claim, despite the clear (and well-documented) performance issues?…READ MORE
Could Drinking a Beer Constitute a Legitimate Use of FMLA Leave?
The Situation: You have an employee who has requested intermittent FMLA leave because of some mental health conditions, including depression and anxiety. One morning, the employee tells his supervisor that he needs to use some of this leave because he is experiencing severe stress and anxiety. Another employee reports to you that as the employee was clocking out, he ran into a coworker who was also leaving the jobsite and they made plans to have lunch. You send someone to the restaurant to confirm that the employee is there and he observes the employee drinking a beer. You end up firing the employee. Can he bring a claim of FMLA retaliation against you?…READ MORE
Did She Quit or was She Fired? In FMLA Context, Could Mean Liquidated Damages
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?…READ MORE
Get your story straight—employer’s change in explanation can be evidence of pretext
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).…READ MORE
No FMLA Retaliation Where Employer Can Show Employee Terminated for Improperly Accessing Supervisor’s Email
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).…READ MORE
New Guidance from EEOC on Pregnancy Discrimination
Earlier this week, the EEOC issued a Notice titled Enforcement Guidance: Pregnancy Discrimination and Related Issues. The EEOC provides an overview of statutory protections, discussing the Pregnancy Discrimination Act (“PDA”), the Americans with Disabilities Act (“ADA”), and other requirements affecting pregnant workers, including the Family Medical Leave Act (“FMLA”), Executive Order 13152 Prohibiting Discrimination Based on Status as Parent, Section 4207 of the Patient Protection and Affordable Care Act which requires that employers provide reasonable break time for nursing mothers, and state laws that relate to pregnant workers. The EEOC provides a number of helpful examples of what would and would not constitute unlawful discrimination and is a useful tool for employers to review. This guidance can be found at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.…READ MORE