Ignorance of the FMLA Is No Excuse; In Fact, It Could Be Evidence

That's just one lesson to be learned from the 10th Circuit's decision in DeFreitas v. Horizon Management Corp. (10th Cir. 8/14/09) [pdf]. In reversing the lower court's grant of summary judgment on DeFreitas interference with FMLA claim, the Court noted:

It would be eminently reasonable to believe that an employer who was ignorant of the FMLA—as Mr. Terry admitted he was before Ms. DeFreitas complained of her firing—would engage in the very practice that the FMLA was enacted to prevent [firing employees who missed too much work for medical care].

The opinion is also a good example of how employers can easily get trapped by their own policies and words. Here, although the claimed reason for termination was conduct uncovered while she was out on medical leave for 6 weeks, the Court found that:

• she had progressed rapidly from entry level to Vice President within two years;
• there were no written warnings for performance issues;
• there were numerous written positive comments from various members of management about her performance;
• although the company had a progressive discipline system that emphasized no employee would be terminated without receiving a written warning and being given a chance to improve, that did not occur;
• the employer's handbook said that every terminated employee would be given an exit interview including putting in writing the reasons for the termination and the policies that have been broken, but this was not done in her case.

Vince Lombardi said football is two things: blocking and tackling. The absence of written documentation of poor performance and not following your own procedures, might just be the HR equivalent.

Domestic VIolence - a Lurking Issue

Articles, like Domestic violence often bleeds over into workplace from the Birmingham Business Journal, crop up ever so often. Almost every time I see one, it makes me think this continues to be one of those hidden issues that some day is going to come to the forefront on employers' radar screens.

Violence in the workplace is the most horrific aspect, but I can't help think that productivity issues are more prevalent. Many of the potential amendments to the FMLA include domestic violence as a trigger. When legislation starts recognizing it as an employment issue, may be the time it starts being more visible. If you haven't given it any thought, it might be a good idea.

FMLA Coverage by Estoppel - Via State Law Claims

I have posted before about the dangers of creating coverage by estoppel relying in part on the Supreme Court decision in Arbaugh v. Y & H Corp. See The Progeny of Arbaugh and Danger for the Small Employer.

Without mentioning Arbaugh, the 7th Circuit points out that there are state court theories that could result in coverage under the FMLA. In its handbook, and repeated in its letters to an employee who requested FMLA leave, the employer used the following language about eligibility:

To be eligible for FMLA benefits, an employee must have worked for a covered employer for a total of 12 months and have worked at least 1,250 hours over the previous twelve months.

What was missing was the so called 50/75 exception, that an employee is not eligible if they are at a worksite with less than 50 employees within a 75 mile area.

Unfortunately, that was exactly the situation in Peters v. Gilead Sciences Inc. (7th Cir. 7/14/08) [pdf]. Peters was at a work site where the 50/75 exception would have been applicable. When FMLA protection became an issue, Peters lost at the trial court.

Without addressing the concept of equitable estoppel, the Court found that the Indiana state law claims of contract law (based on the handbook) and promissory estoppel might be enough to create coverage and reversed the trial court's grant of summary judgment. It also said that whether equitable estoppel ( where Arbaugh might make a difference) might also be available, remained an open question under 7th Circuit law and one that they need not decide now.

Word to the wise, words matter. If you intend to rely on a 50/75 exception, you should say so.

5th Circuit Limits "Associational Rights" Under the FMLA

There has been a recent spate of activity about associational rights under various statutes, with most of them taking a relatively broad view of expanding protection for those who have been discriminated/retaliated against because of their association with an employee who had a substantive claim. See for example the Laconic Law Blog's post on Associational Discrimination or the Ohio Employer's Law Blog post on an April decision by the 6th Circuit.

Which makes Friday's decision by the 5th Circuit in Elsensohn v. St. Tammany's Parish Sheriff's Office (5th Cir. 6/6/08) [pdf] interesting because the 5th Circuit refused to do so under the FMLA. Elsensohn's wife, who was formerly employed by the Sheriff's office had an FMLA claim against it. Elsensohn was a sergeant. According to his complaint, "at all times Elsensohn attempted to not involve himself in his wife's FMLA claim except to give her moral support."

After she settled her FMLA claim, Elsensohn claimed he was denied a promotion and was transferred to a less favorable position. He sued under FMLA saying he had been retaliated against because the employer knew if her case went to trial he would testify on her behalf.

However, he did not fit under the literal language of the statute of being one who "had given, or was about to give" any information in connection with a proceeding, nor had he "testified, or was about to testify in any inquiry or proceeding." The district court found his potential participation with his wife's claim was not enough to bring him literally within the wording of the FMLA's protective ambit.

The 5th Circuit while agreeing that some other courts had expanded laws to cover such claims, noted it had refused to do so under the ADEA, and since it appeared the protection there was even broader than that afforded to individuals under the FMLA, declined to do under the FMLA as well.

In the greater scheme of things, not a huge decision, but certainly an interesting one in a unique niche that seems to be getting some attention of late.

There is FMLA Expansion and Then There Is FMLA Expansion

As I mentioned in an earlier post, I am doing a speech at the SHRM national convention on the potential impact of the 2008 elections. One of the areas I will be covering is possible expansion of the FMLA. But those bills are pikers compared to what was offered in the Connecticut legislature. Thanks to Daniel Schwartz at the Connecticut Employment Law Blog for his post, The Right to Attend Opening Day at Yankee Stadium...and Get Paid by Your Employer.

Actually it was better than just opening day, it was also for the first day of summer, and also "the first day of a sport-fishing or hunting season authorized pursuant to chapter 26 of the general statutes." But apparently it was more of a satirical offering by some Republicans opposed to paid leave than a serious offer.

I think what is scary is that I wasn't sure that it was not a serious offer until I read Daniel's post.

Initial Reactions to the New (Proposed) FMLA Regs

Apparently some folks did some reading over the weekend, as the first reactions to the Bush proposed FMLA regulations are beginning to trickle in. In early comments, two business trade organizations were tentatively pleased --

• The National Retail Federation:

  The proposed changes to the current FMLA regulations provide additional clarity to a law that has helped millions of workers and their families," NRF Vice President for Government and Political Affairs Rob Green said. "Pending a thorough review of the proposed regulations, our initial analysis indicates that the new rules will help modernize a confusing and contradictory FMLA regulatory system that is often challenging for employees to understand and difficult for employers to administer. This long-overdue update will help restore FMLA regulations to the intent Congress had when it passed the original law 15 years ago.

• The National Association of Manufacturers:
  

  We welcome the Department of Labor’s decision to address the way the Family and Medical Leave Act is applied in the workplace. Today’s action is the result of tens of thousands of comments to the federal government from both employers and employees, and it builds on a decade-long record of congressional testimony and legal decisions that reached the Supreme Court, all pointing to the practical challenges involved in granting family and medical leave. Over the course of the regulatory process, the NAM looks forward to reviewing the proposal thoroughly to ensure it upholds the benefits outlined in the law, while addressing critical administrative problems.

Not unexpectedly, Senator Hillary Clinton's campaign was not :

The Bush Administration is seeking to make it more difficult for employees to claim paid leave when it is available to them by requiring the employers leave policies to take precedent over the FMLA; requiring employees with chronic health conditions to obtain an annual certification that they are able to do their job or risk being transferred to a different job; allowing employers to communicate directly with medical providers, which raises privacy concerns; and much more. The proposed regulation is 500 pages long.

The Family and Medical Leave Act makes it possible for people to meet their responsibilities at work and at home. I have advanced a positive agenda to move our nation towards this goal. The President's proposed regulations, unfortunately, are a harmful step back.

Daniel Schwartz at the Connecticut Employment Law Report not only has a new job, but also has an initial survey of how this issue is being treated among the blogging community in his Wrapup.

And one of my Washington colleagues, Al Robinson who has long been monitoring developments in this area has pointed out that we may get some initial congressional reactions in hearings that were already scheduled to commemorate the 15th anniversary of the FMLA's passage:

• The Children and Families Subcommittee of the Senate Health, Education, Labor and Pensions (HELP) Committee will hold a hearing on Wednesday, February 13, at 3:00pm; and


• the Workforce Protections Subcommittee of the House Education and Labor Committee will hold its hearing on Thursday, February 14, at 10:00am.

For those who prefer a pdf link to the new regulations as opposed to the text link that was available in my Saturday posting (where you can see some early thoughts on the regs) go here. And yet another link -- an e-alert from my firm with more thoughts can be found here.

Based on the early returns, it's too early to project a winner, but I think you are safe in saying that there will be a contested battle.

Waiting with Bated Breath - the Proposed New FMLA Regulations Coming Monday

It probably won't quite stack up with the drama of the Patriots v. Giants classic of a week ago, but the suspense this week end waiting for the release of the proposed FMLA regulations may be intense. U.S. Department of Labor proposal will clarify FMLA rules for workers, employers and military families. Or maybe not.

Just in case you wondered how much anticipation you should have, the typed version apparently comes in just under 500 pages.

Update Saturday morning: For those who just can't wait until Monday morning, here's the link to the new regulations. Happy reading.

Some brief highlights:

• The definition of "serious health condition" would be modified to require that the 2 or more treatments must occur within a 30 day calendar period and for chronic conditions the employee would have to see a physician for the condition at least twice a year;


• There is no change in the time increments in which intermittent leave can be taken, which is something the employer community really would have liked. The proposed regulations would require that an employee using intermittent leave utilize the employer's regular call in procedure except under "emergency" situations, which is a plus.


• There are numerous changes to medical certification provisions which would allow an employer to obtain more information from health care providers;


• One of the best examples that has been used to bash the FMLA would be changed, the employee on FMLA leave would no longer be entitled to receive a "perfect attendance" or similar bonus as long as all types of leave are treated the same;


• Employer and employee notification requirements are also changed. Employers would be required to provide annual notice of FMLA rights and responsibilities to employees but would get five days rather than the current two to provide an employee notice of eligibility for FMLA leave and designate a leave as FMLA; and


• there's a change in the 12 month service rule for eligibility to exclude a break in service of more than 5 years, subject to exceptions for military, authorized educational or childrearing leaves, or where intent to rehire are covered by a collective bargaining agreement.

There is also a request for input on how the DOL should handle the recent expansion of the FMLA related to military leaves.

These proposed rules are not nearly as dramatic as the ones that were originally proposed to the white collar regulations which set off a legislative and political uproar. It will be interesting to see what happens to these. Although there will no doubt be comments from both sides, my initial thoughts are that if anyone should be howling for more, it should be employers.

A good example is intermittent leave. If you have any doubts that it is a real problem in need of a solution, consider what is happening to the Hillsborough Transit Authority in the Tampa area. It is currently faced with a $2.1 million cost because 42% of HART's 364 bus drivers have filed for intermittent medical leave. See, Family medical leave usage bloats HART's overtime.

According to the article,

HART executives are being forced to budget 18 percent more drivers to cover the daily workload. Those extra drivers report to work and wait for assignments to cover workers who call in sick.

Unscheduled absenteeism is on the rise among the drivers, up 34 percent since 2005. Nearly 40 percent of the HART bus driver absenteeism is a result of workers claiming intermittent time off under the Family Medical Leave Act.

It seems unlikely that the proposed changes in the regulations will help address these types of problems.

The new regulations have a 60 day comment period. Although it is not uncommon for those periods to be extended, I wouldn't count on it in this case as no doubt the folks at the DOL are well aware that the sand in the hourglass on the Bush administration is rapidly running out.

FMLA Expansion - Maybe Not So Quick

Dan Schwartz's Connecticut Employment Law Blog has been one of 2007's leading entries into the employment law blog arena. An example why is that even while vacationing he was keen enough to pass along a caution that the FMLA expansion that has been mentioned in several blogs recently (including this one), seems to have hit a Presidential snag. President to Veto Bill with Expanded FMLA Benefits to Military Families.

What's more impressive is that Dan is apparently the first to make the connection between the well publicized veto and the hit to the FMLA expansion, as my google news search a moment ago for "fmla and veto" came up with no hits. A huge tip of the hat for a scoop not only in the (relatively) small world of employment law blogging, but of the big time media as well.

It seems that the offending clause in a 1000+ page bill is § 1083 which provides in part:

Chapter 97 of title 28, United States Code, is amended by inserting after section 1605 the following:
`Sec. 1605A. Terrorism exception to the jurisdictional immunity of a foreign state

`(a) In General-

`(1) NO IMMUNITY- A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

That particular provision was of great concern to the Iraq government and the concerns have convinced the White House of the need to take action.
,
Since the pocket veto (last heard about in your high school senior civics class) is causing some political waves for President Bush, see In Surprise Step, Bush Vows Veto of Military Bill, and the bill was passed overwhelmingly by both the Senate and the House, it seems quite likely that after the first of the year everything will be worked out and the expansion will go through.

But as Dan says, "it's fair to say that this situation is fluid."

FMLA Expanded with Passage of Department of Defense Funding Bill

More action on the legislative front as Congress today adopted the first expansion of the Family and Medical Leave Act since its original passage. Although for a limited (and good) cause, the expansion is a big one.

It encompasses two kinds of leave --

• 12 weeks where "the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation and there is a "qualifying exigency" which is to be defined by the Secretary of Labor by regulation; and

• 26 weeks where an eligible employee who is the spouse, son, daughter, parent, or next of kin of an injured servicemember needs to take care of them. This is apparently a one time leave.

In short, the expansion which is part of the Department of Defense funding bill is designed to provide possible leave for families of servicemen for both active duty call ups and cases of injury.

Although it is part of a much bigger bill, the relative portions expanding the FMLA can be found here. President Bush is expected to sign the bill.

It is unclear when it will be effective, although arguably it could be as soon as it is signed by the President which should be in the next few days, even though obviously there will be no regulations for some time.

Stay tuned for more details.

The Progeny of Arbaugh - Coverage by Estoppel

Maybe it's just the law of unintended consequences, or perhaps more fairly for the Court, the law of unanticipated consequences, but when the Supreme Court held in Arbaugh v. Y & H Corp. that the 15 employee limit was not jurisdictional it barely got more than a ho-hum, at least from me.

Just to prove my point I quote myself from my initial post on Arbaugh:

"In a case that is of more importance to the technicalities of the legal process than to employment law, the Supreme Court yesterday held that the requirement of 15 employees for coverage of Title VII is an element of the plaintiff's case, not a jurisdictional prerequisite."

And I finished off with this —

"All in all a tidy summary of federal courts law and the principle that federal courts are courts of limited jurisdiction --- but not an employment law blockbuster."

— which could prove yet another faulty prediction on my part.

That will certainly be true if a trend that I first noted last month in Danger for the Small Employer: 'Estopping' yourself into coverage where the 6th Circuit held that there were circumstances where an employer with fewer than 20 employees could create coverage by its actions, continues.

It did continue on Friday the 13th, when Judge Mark Bennett of the Northern District of Iowa, in a 26 page opinion, based in part on Arbaugh, held it is possible that an employer with fewer than 50 employees within a 75 mile radius, could still find themselves "required" to grant FMLA leave, based on their conduct, even though not technically within the coverage of the statute. Myers v. Tursso Company Inc.

Many large companies have taken the position that they would treat all employees the same under the FMLA, even though some might not technically qualify because of the 50 employees within 75 mile requirement. Their lawyers have often gone along, thinking that in a pinch they could still use the requirement as a defense if an issue arose. That may still be viable in some cases, but the Arbaugh based estoppel decisions make clear it is not always a hands down winner.

Hat tip to the folks at Employment Law 360 for the tip to the Myers decision.

FMLA Feedback, Not Regulations — And Another Prediction

Information, but no proposed regulations — that seems to be the result of the DOL's request for feedback on how the FMLA is working. See the full report at Family and Medical Leave Act; information request; report.

According to the DOL the main areas of response were about three primary topics:

1. gratitude from employees who have used family and medical leave and descriptions of how it allowed them to balance their work and family care responsibilities, particularly when they had their own serious health condition or were needed to care for a family
   member;
2. a desire for expanded benefits--e.g., to provide more time off, to provide paid benefits, and to cover additional family members;
3. frustration by employers about difficulties in maintaining necessary staffing levels and controlling attendance problems in their workplaces as a result of one particular issue--
   unscheduled intermittent leave used by employees who have chronic health conditions.

The AP story as printed on the Seattle Post-Intelligencer website summarizes the report as Medical leave program generally popular, which I don't think really reflects the view of most major employers.

Senator Chris Dodd one of the original authors of FMLA is teaming with Senator Ted Stevens from Alaska to offer a proposal that would create an insurance fund to allow 8 weeks of FMLA leave to be paid. Anyone who says that paid FMLA leave would not result in considerable more use and a multiplication of current employer problems, is either not being realistic or honest, or both.

Still, the political reality is that there is not going to be any "fix" for the foreseeable future that is not accompanied by some sort of expansion in benefits — be it paid leave, more employers covered or longer unpaid leave. And to make matters even worse for employers — if I had to choose which was more likely, expansion of benefits with or without a fix for employers, I would place my money on the latter.

Need More Time To Comment on Possible Changes to the FMLA Regs?

The kind souls at the DOL have graciously extended the deadline from February 2nd to February 16th by this post in last Friday’s Federal Register.

If you are puzzled what this is all about, check out New FMLA Regulations? Not Quite, But A Start.

There still has not been anything to change my view that you won’t see any new regulations until at least the next administration. And then, if you are an employer, you may not want to.

Chicago School of Economic Analysis in 1st Cir. FMLA Case

Deciding that two related entities are not one employer for purposes of the FMLA, the 1st Circuit relied heavily on the type of economic analysis more regularly seen in the 7th Circuit. Engelhardt v. S.P. Richards Co. (1st Cir. 12/22/06) [pdf]. The primary argument for combining the two in order to reach the magic 50 employees within 75 mile radius number needed for coverage, was that S.P. Richards used employment forms and policies of its parent company, Genuine Parts Company.

The Court even quoted the most famous practitioner of the Chicago School, Judge Posner:

Firms too tiny to achieve the realizable economies of scale or scope in their industry will go under unless they can integrate some of their operations with those of other companies, whether by contract or by ownership. The choice between the two modes of integration is unrelated to the exception. Take contractual integration first. A firm too small to have its own pension plan will join in a multi employer pension plan or will in effect pool with other employers by buying an insurance policy. . . . It will hire an accounting firm to do its payroll rather than having its own payroll department. It may ask the Small Business Administration for advice on how to maximize its profits by pruning its least profitable operations. None of these forms of contractual integration would subject tiny employers to [liability], because the integration is not of affiliated firms. Why should it make a difference if the integration takes the form of common ownership, so that the tiny employer gets his pension plan, his legal and financial advice, and his payroll function from his parent corporation without contractual formalities, rather than from independent contractors?

The bottom line — no integrated employer, no liability.

New FMLA Regulations? Not Quite, But A Start

In tomorrow's federal register the Department of Labor will be requesting input on a variety of topics on the FMLA, preliminary one supposes to providing a draft of proposed regulations. Included among the requests are a way to better define serious health condition:

• Section 825.114(c) states "[o]rdinarily, unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave." Have these limitations in section 825.114(c) been rendered inoperative by the regulatory tests set forth in section 825.114(a)? • Is there a way to maintain the substantive standards of section 825.114(a) while still giving meaning to section 825.114(c) and congressional intent that minor illnesses like colds, earaches, etc., not be covered by the FMLA?

You can find a copy of the complete request for information here.

Unless my memory fails, this is a different path than the DOL took with its proposed changes to the white collar exemptions. There the department issued a proposed rule, was soon eneveloped in a huge political firestorm and changed (watered down some would say) the final rule substantially.

Perhaps seeking to avoid going down that path again, the Department has chosen to post a number of topics that it is seeking input on — without a suggested rule. The initial public comment period will end February 2nd. Although it is not uncommon for public comment periods to be extended, if the Bush administration wants to make changes on its watch, there is not going to be a lot of time, so I would plan on getting any comments in sooner rather than later.

One source for information is the National Coalition to Protect Family Leave. You can check their website for background information on the sort of changes that they would suggest.

Here's a list of the 12 substantive areas that the DOL is seeking input on:

• Eligible Employee
• Definition of "Serious Health Condition"
• Definition of a "Day"
• Substitution of Paid Leave
• Attendance Policies
• Different Types of FMLA Leave
• Light Duty
• Essential Functions
• Waiver of Rights
• Communication Between Employers and Their Employees
• FMLA Leave Determinations / Medical Certifications
• Employee Turnover and Retention

FMLA Crow Fails to Fly Again

As did the 5th Circuit last year (see "Not As the Crow Flies" FMLA Regulation Valid ), the 10th Circuit gives Chevron deference to the DOL's regulation that the FMLA 50 employees within 75 miles rule, means "surface" not "linear" or in the vernacular, as the crow flies, miles. Hackworth v. Progressive Casualty Insurance Co. (10th Cir. 11/14/06) [pdf]. It was a particularly bitter pill since the distance between offices that would tip the balance was 75.6 miles.

The court rejected the argument that the regulation was arbitrary even though courts use "as the crow flies" miles in enforcing the 100 mile limitation on service of process under the Federal Rules of Civil Procedure and in analyzing the relevant geographic market for antitrust liability under the Sherman Act. A clever argument according to the court, but unavailing since the underlying purposes are different.

One argument that was not made was coverage by estoppel which has been attempted in other cases, generally unuccessfully as well. Hackworth had actually been granted an FMLA leave and only when she wanted to return did the employer pull out its handy map.

5th Circuit Holds Individual Government Employee Can Be Liable Under FMLA

An employee of the Texas Cosmetology Commission had a number of problems with her superiors following an incident where she was convicted of simple assault following an altercation with operators of a beauty school she was inspecting. (Texas doesn't get its reputation for taking "big hair" seriously for nothing.) After more problems she brought a suit against the new Executive Director of the agency arguing the ED should be individually liable under the FMLA as an "employer."

Although ultimately the 5th Circuit let the ED off the hook because the law was not firmly established when the claim was made in 2003, from this point forward, the law in the 5th Circuit is now clear:

We agree with the Wascura court that "t]he fact that Congress, in drafting the FMLA, chose to make the definition of "employer" materially identical to that in the FLSA means that decisions interpreting the FLSA offer the best guidance for construing the term "employer" as it is used in the FMLA. Wascura, 169 F.3d at 686. We have previously held that a sheriff is an employer for purposes of the FLSA. Lee v. Coahoma County, Miss., 937 F.2d 220, 226 (5th Cir. 1991), amended by 37 F.3d 1068 (5th Cir. 1993). Therefore our conclusion that plain language of the FMLA permits public employees to be held individually liable is consistent with our holding in Lee.

Modica v. Taylor (5th Cir. 9/13/06) [pdf].

In doing so, the 5th Circuit disagreed with some of its sister circuits, including ironically the 11th Circuit in Wascura, so I should say the law in the 5th Circuit is now clear until the Supreme Court says otherwise. For private sector employers the message should be equally clear. Just like under the FLSA, individual managers who take action with respect to FMLA matters may very well find themselves subject to individual liability.

5th Circuit Clarifies 2 FMLA Damage Elements

Last Friday the 5th Circuit upheld a contested FMLA termination case, but remanded for retrial on 2 damage elements. It found the Court erred by not using the FLSA/ADEA model for insurance benefits and retirement payout. Lubke v. City of Arlingon (5th Cir. 6/30/06) [pdf].

On insurance the correct standard is:

Either actual replacement cost for the insurance, or expenses actually incurred that would have been covered under a former insurance plan. The lost “value” of benefits, absent actual costs to the plaintiff, is not recoverable.

At his termination, Lubke received a payout of his pension. The 5th Circuit rule under the FLSA/ADEA, now applicable to the FMLA, is:

An employer’s portion of retirement and other payments made to a terminated employee must be deducted from an award of lost wages and benefits in ADEA discrimination cases.

Slowly, but surely, the courts are beginning to fill in the gaps of our newest employment law. 13 years after its passage, some might say -- about time.

Unable to Return in 12 Weeks? The Impact Under the FMLA

The answer -- of course -- it depends. First, under which theory the suit is brought -- interference/entitlement or retaliation/discrimination. After sorting that out, it could make a difference when the medical evidence demonstrating the employee could not return at the end of 12 weeks was obtained.

This heady discussion of FMLA principles arose when there was a dispute over the due date that an employee was to return the medical certification entitling her to an FMLA leave. On the day that the company argued it was due, it mailed a letter of termination. Before receiving the letter, the employee turned in the certification on the day she believed it to be due, three days later.

That factual dispute precluded summary judgment for the employer on the ground that she failed to timely return the medical certification. However, the undisputed medical evidence showed that the employee was unable to return to work until fifteen months after her twelve weeks of FMLA leave would have ended. The district court granted summary judgment for the employer on that ground.

The Court had partially addressed this issue earlier, holding in Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775 (6th Cir. 1998), that an employee who is not able to return to work after 12 weeks has no valid FMLA claim.

Although today's case was ultimately determined to have been brought only under the entitlement/interference theory, the Court also addressed how this fact pattern would play out under the retaliation/discrimination theory, and the potential difference of the impact of the timing of the medical evidence, particularly in light of the after acquired evidence doctrine of McKennon v. Nashville Banner Publishing Co.

That consideration led to a neat (if rather complex) summary of the law, which I would paraphrase as follows:

1. in entitlement cases, if an employee can not return to work at the end of 12 weeks, an employer is not liable regardless of whether the medical evidence revealing the employee’s inability to return to work is available before or after the termination decision;
2. in retaliation cases where the medical information is known prior to the termination decision, that would be a legitimate, nondiscriminatory reason for discharging the employee, and
3. in retaliation cases where the employer learns of the employee’s inability to return to work only after the termination decision, employer will not have a defense to liability, but might be able to limit the damages.

Edgar v. JAC Products, Inc. (6th Cir. 4/6/06) [pdf].

Although all three holdings might be dicta since they extend beyond the facts of the case, a 6th Circuit practitioner ignores them at their peril. If nothing else, they provide a clear road map of the Court's thinking.

And if that were not enough, the Court also had to address plaintiff's contention that she had been unable to return because the termination had exacerbated her condition, arguably precluding her return in a timely fashion. The Court rejected that theory under the FMLA on two grounds: the FMLA regulation on return focuses on whether the physical or mental condition prevents the employee from returning, not on the cause of the condition; and, such a theory would be bad policy:

Because the stress inherent in adverse employment decisions will tend to aggravate most forms of mental or emotional instability, an argument that summary judgment is precluded by factual disputes as to whether the actions of the employer worsened the employee’s mental state and prevented the employee from resuming his or her position could become standard fare.

Nothing about this opinion does anything to change my belief that the swell of FMLA litigation that has until the last year or so been under the radar screen now, and from this point is taking its place in the pantheon of employment litigation. In fact until many of the nuances of a quite complex statute, such as those reflected in this opinion, are definitively decided, it may be a dominant type of employment litigation.

The Involuntary Family and Medical Leave Act in the 5th Circuit

What to do with a case that "defies the conventional pattern for FMLA claims?" Or maybe more to the point -- what would that be? In Willis v. Coca Cola Enterprises, Inc. (5th Cir. 3/31/06) pdf, this is what the Court faced:

Willis does not contend that she requested FMLA leave and that CCE then interfered with, restrained, or denied her rights under the Act. ... Rather, Willis asserts that she was placed on “involuntary leave” when her supervisor refused to permit her to return to work until she had gotten a medical release and then, while she was on this mandated FMLA leave, fired her for noncompliance with the leave policy of the company. To complicate matters, CCE denies that it ever placed Willis on involuntary FMLA leave, thereby forcing Willis to assert her FMLA rights from an unusual posture: at the time Willis stopped coming to work, she denied that she needed leave, but now, enmeshed in litigation, Willis asserts that she was on FMLA leave. (emphasis added)

A rather convoluted state of affairs, which caused the court to face a case of first impression in the circuit -- what constitutes involuntary FMLA leave and what are the parties’ rights and obligations pursuant to this type of leave? The short answer seems to be -- no different from a regular FMLA leave.

It is clear that the employer is the one that has the power to designate or not, and the burden is on the employee to provide sufficient information to demonstrate that there is a serious health condition. Here the employee merely told her supervisor that she was out sick, not enough to inform the employer she had a serious health condition. In the court's mind that was not enough, so even though she was on medical leave, she was not on FMLA leave.

After looking how the 6th and 10th circuits had dealt with similar issues, the Court concluded that even in the case of "involuntary leave" the employee still has the obligation to provide sufficient information to alert the employer of the serious health condition. As the Court noted:

This sharing of the informational burden will not work if employees, for the purposes of litigation, can later designate leave as FMLA qualifying without making a proper showing that, at the time they requested leave, they put their employer on notice that FMLA leave was necessary due to a serious medical condition.

Without pausing on a Friday afternoon to puzzle this one through, it sure seems that the Court's opinion took the long way round to get to the answer, which may have been why Judge Reavley concurred only in the judgment.

Settling FMLA Claim Just Got A Little Lot Tougher

Brian Peterson at his eponymous West Virginia Legal Blog, has a good report, FMLA claims cannot be settled without court or DOL approval, on yesterday's decision in Taylor v. Progress Energy, Inc. , No. 04-1525 (4th Cir. July 20, 2005) [pdf]. The Court applied § 825.220(d) of the FMLA regulations as written -- an employee cannot waive rights under the FMLA. Call this one the revenge of Robert Reich, President Clinton's Secretary of Labor, and a good reminder of the importance of having control of the executive branch of government when it comes to writing and amending regulations.

According to the 4th Circuit the trial court was led astray by the 5th Circuit's opinion in Faris v. Williams WPCI, Inc., 332 F.3d 316 (5th Cir. 2003) which had taken a restrictive view of the regulation, holding it applied only to prospective waivers. A position with which it flatly disagreed.

The fact pattern in Taylor is exactly the kind that one would expect -- a severance package with a release that the employer no doubt thought included FMLA claims. Given the long statute of limitations and lack of adminstrative pre-requisites for FMLA claims, if Taylor is accepted by other courts, it could cause a lot of headaches for employers who thought that they were in the clear.

Brian has an interesting suggestion for a summary proceeding in federal court that could review such settlements. I have a different one. With a split between the 4th and 5th Circuits -- let's ask the new Supreme Court with Justice Roberts to decide. On second thought, I am not sure that is a good idea. We might well see Justice Roberts borrowing from his dissent in AFL-CIO v. Chao, 409 F.3d 377 (D.C. Cir. 2005), where as I noted the other day in supporting the power of the Secretary of Labor to issue regulations he wrote:

Perhaps the Secretary was wrong ... That is not the question before the court. The statute plainly delegates the authority to make such policy-laden judgments to the Secretary ... and the Secretary has reasonably exercised that authority.

Maybe we should go to Plan B, deal with this in the current move to make technical corrections to the FMLA, or since that has not made a lot of progress, maybe it's time to amend the OWBPA to cover FLSA and FMLA claims.