FMLA Retaliation: Understanding and Managing the Risks Presented - - PowerPoint PPT Presentation

FMLA Retaliation: Understanding and Managing the Risks

Presented by: Meg LePage and Dan Strader September 13, 2018

FMLA Basics: An Overview

Federal FMLA Em ployee Coverage

Worked for employer for 12 months total, and for 1250 hours in 12 months immediately preceding leave, and at worksite where 50 or more employees within 75 miles

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Em ployee FMLA Eligibility

12‐month requirements need not be consecutive if break in service is less than 7 years. If an employee is on leave at time he/she meets 12‐month eligibility requirement, leave after becoming eligible is FMLA protected. 1250 hours of service is based on actual compensable work (not just on payroll)

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Federal FMLA Leave Rights

12 weeks of leave in 12-month period (“leave year”) Intermittent leave or reduced schedule when medically necessary Health benefits if employee pays his/ her normal share Restoration to same or equivalent position Use of paid time off can be concurrent with FMLA leave

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Maine Fam ily Medical Leave Requirem ents Act ( FMLRA)

Applies to employees regardless of hours worked in previous 12 months (e.g., part-time) Applies to domestic partners, certain co-dependent siblings 10 weeks of leave in every 2 years Applies to employers with 15 or more employees at 1 site Federal regulations are good guidance, but not binding

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FMLA: Covered Conditions

The serious health condition

• f employee

The serious health condition

• f employee’s

parent, child, or spouse Care for a newborn (within

• ne year of

birth) Care for a newly adopted child or newly placed foster child

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Serious Health Condition

• Inpatient care

(overnight stay) or

• Continuing

treatment by health care provider

Injury, illness, impairment

• r physical
• r mental

condition that involves:

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W hat is Continuing Treatm ent?

(1) Incapacity (> 3 days) plus treatment:

• 2 or more visits or
• 1 visit and regiment of treatment

(2) Pregnancy or prenatal care (3) Chronic conditions (4) Permanent or long term incapacity (5) Conditions requiring multiple treatments

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Pregnancy and Childbirth

Bonding time in first 12 months post birth Both birth mother and spouse are eligible (male or female) Could be entitled to leave pre‐birth for pregnancy complications and appointments Spouse could need leave to care for incapacitated pregnant wife

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I nterm ittent Leave/ Reduced Schedule

Increments of one hour or more Employer required to provide intermittent leave

• nly when medically necessary

Cannot compel employee to take more leave than necessary Temporary reassignment allowed when leave is foreseeable based on planned medical treatment

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FMLA Em ployee I nform ation Packet

Employee Request for Family Medical Leave

• Employer created form
• Compliant with federal

and state(s) laws

• Not necessary if

employee had clearly requested leave in writing (e.g., email) or in

• ther situations(e.g.,

employee calls from hospital) Notice of Eligibility and Rights and Responsibilities

• WH‐381
• Dol.gov/whd/fmla/

index.htm

• Within 5 business days of

notice of leave

• Payment of health care

premiums

• Use of other paid leave
• Periodic reports of intent

to return to work

• Definition of leave year

Certification of Health Provider

• WH380 (employee)
• WH‐380F (family

member)

• WH‐384 (qualifying

exigency)

• WH‐385 (injury or illness
• f covered service

member)

• 15 Days to return
• If certification incomplete
• r insufficient, at least 7

calendar days to cure

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FMLA Post Request Packet

FMLA Designation Form

• WH‐382

(completed by employer)

• Approves leave or

tells employer that second

• pinion or

additional information is needed.

• Within 5 business

days after receiving certification form Recertification Forms

• For use if initial

certification expires or if employee’s of intermittent leave differs from current certification

• Consider letter to

health care provider explaining how leave pattern has differed. Return to Work Certification

• Include job

description (employee own serious health condition)

• Analyze whether

you want to request IME Limited or Light Duty Restrictions

• Determine

availability of restricted work before employee returns to duties

• If FMLA leave is

not expired but employee wants to return on light duty, have employee sign certified request for light duty

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Updated DOL Form s

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Reinstatem ent Rights Same Position or Equivalent Position

• “virtually identical” in terms of pay,

benefits, and working conditions, including privileges, status, etc.

• Must involve “same or substantially similar

duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority.”

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FMLA Notice Requirem ents

• f Em ployee
• 30 days for foreseeable leave
• If not practicable, then as

soon as practicable

• Employee must provide

sufficient information to establish eligibility

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Scheduling Leave

• Employee duty to make “reasonable

efforts” to schedule leave so as not to unduly disrupt employer operations

• Must consult with employer when

scheduling time off

• Subject to approval of health care provider
• Intermittent leave
• Employer can request that employee explain

why schedule is necessary and provide notice

• f the schedule for treatment

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FMLA Retaliation and Interference

FMLA Retaliation/ I nterference Claim s

(1) An employer is prohibited from interfering with, restraining, or denying the exercise of (or attempts to exercise) any rights provided by the FMLA. (2) An employer is prohibited from discharging or in any

• ther way discriminating against any person(whether
• r not an employee) for opposing or complaining

about any unlawful practice under the FMLA. (2) All persons are prohibited from discharging or in any

• ther way discriminating against any person because

they have filed a charge, provided information or testified in connection to a proceeding under the FMLA.

29 C.F.R. §825.220

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Elem ents of I nterference Claim

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EE was entitled to an FMLA benefit FMLA benefit was denied (no intent required) ER Defense: EE would have suffered adverse job action regardless of request or use of FMLA leave

Elem ents of an FMLA Retaliation Claim

EE engaged in statutorily protected conduct EE suffered adverse employment action A causal connection exists between the two.

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Hypothetical

• John Doe is on PIP for attendance
• Requests intermittent leave for anxiety
• John continues to have absences, some for

FMLA reasons, some for other reasons.

• Supervisor writes to HR: “When can we

terminate John? These absences are putting a strain on our productivity.”

• Coworkers make snide comments to and

about John and his “convenient no-shows.”

• John’s record of non-FMLA absences exceed

handbook’s definition of excessive absences.

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Major Risk Factors for Retaliation Claim s Temporal proximity: it’s all about timing Supervisor expressions of hostility or dismissiveness No fault attendance policies Inconsistent disciplinary enforcement Overly aggressive fraud prevention measures

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Major Risk Factors for I nterference Claim s

Lack of clear FMLA policy (e.g., no defined leave year) Supervisor lack of training/awareness of policies (failure to recognize protected absence) Lack of methodical record keeping and leave tracking Lack of knowledge of FMLA (and state counterpart) law

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Recent Case Law and Guidance

W alker v. City of Pocatello

( D. I D 2 0 1 8 )

Walker was police officer who had been tasked with investigating other officers, including Chief for accessing pornography on work computers. Walker required FMLA leave, and the Chief

• rdered secret video surveillance of the

employee on his own property. Chief’s use of private surveillance was not based on any legitimate suspicion of Walker’s misuse of leave. Court held that surveillance could amount to FMLA interference because of its “chilling effect” even though no leave benefits were denied.

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Stew art v. W ells Fargo Bank,

( N.D. Ala. 2 0 1 7 )

Stewart put on performance warning and then took medical leave for neck surgery. Stewart terminated 5 weeks after returning from FMLA leave. Court denied summary judgment because supervisor wrote in email to HR, “I believe we need to move to termination for several reasons,” one of which was “Debby submit[ ted] a request for medical leave.”

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Pye v. Bath I ron W orks Corp ( D. Me. 2 0 1 6 )

Pye was approved for intermittent FMLA leave to treat anxiety and depression. Used a day of leave to attend a personal court date in the morning and then to recuperate at home from the stress caused by court date. Pye sued for interference and retaliation. Court dismissed retaliation claim, finding admission he used day to go to court meant he had not engaged in protected activity Court declined to dismiss interference claim because Pye had informed BIW that his mental health had deteriorated and BIW declined to give him time off before court date incident.

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DOL Opinion Letter FLSA2 0 1 8 -1 9

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Frequent Short Breaks May be Unpaid under FLSA

Interplay between the FLSA and the FMLA relating to the use of intermittent leave to take frequent breaks during the day. Example: Non-exempt (hourly) employee’s physician certifies employee needs a 15 minute break each hour during an 8 hour work day, so the employee performs only 6 hours of work. DOL: Frequent rest breaks for medical reasons under the FMLA primary for employee’s benefit and need not be paid.

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Jones v. Mayw ood Melrose Park

( N.D. I ll. 2 0 1 7 )

Employer filed motion to dismiss complaint on the basis that the employee had been granted his full 12 week leave entitlement. Court denied motion to dismiss because employer “miscounted” 12 weeks because 12 weeks included spring break week where school closed. FMLA regulations provide that although brief work holidays that fall during leave do count toward an employee’s leave entitlement, an employee is not required to use leave during any full workweek in which the employee would not have been required to work. Court later denied employer’s motion for summary judgment, in which it argued that the employee’s second leave request spanned 14 weeks (mostly over summer vacation) and was invalid on its face. The Court held that it was the employer’s responsibility to notify the employee of the amount of available leave, not the employee’s responsibility to request the exact amount remaining.

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Brady v. Bath I ron W orks Corp.

( D. Me. 2 0 1 6 )

• Employee with approved intermittent

FMLA leave for depression and anxiety left work early to “load his car with scrap wood and socialize with a coworker

• ffsite.”
• Court denied BIW’s motion to dismiss

retaliation claim because “this is not a situation where an employee has been caught ‘red-handed’ engaging in an activity clearly inconsistent with the intended purpose of the leave.”

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Capps v. Mondelez Global, LLC

( 3 rd Cir. 2 0 1 7 )

Employee used leave to go to a bar and drink, spend time in jail for a DUI, and recover from DUI punishment, not to attend to a bone disease that left him bed-ridden when exacerbated, as stated in his FMLA request. Court granted summary judgment for the employer because there was no evidence that employer lacked an “honest belief” that the employee had misused his leave.

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FMLA and No Fault Attendance Policies

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FMLA and No-fault attendance policies

FMLA2 0 1 8 -1 A

Prior DOL regulations and guidance say that FMLA leave cannot be counted under no- fault attendance policies, meaning employees cannot accrue points for taking FMLA leave under a no-fault attendance policy. 2018 DOL guidance: Policy that freezes number of attendance points that the employee accrued prior to taking his or her leave does not violate the FMLA.

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Kem pton v. Delhaize Am erica

( D.Me. 2 0 1 6 )

Kempton took intermittent leave to care for husband with Lyme Disease. Kempton eventually terminated for excessive absences, many of which were not FMLA related. “An employer’s need to maintain control

• ver when and how employees come and

go from the workplace is a legitimate reason for subjecting employees to workplace discipline.”

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The “Dism issive View ” of Managem ent

Problematic email from manager to HR: “The early leaves [ leading to Kempton’s discipline] listed here are not tied in to the FMLA for her husband. She has specified that reason for leaving early on some

• ccasions. She is well aware of the pass

she gets when she claims time off for her husband.”

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Reid v. Centric Consulting LLC

( D. MA 2 0 1 8 )

Can a plaintiff m aintain a retaliation claim under the FMLA if he w as not, in fact, entitled to FMLA leave? Reid put on PIP then requested leave for surgery, which was granted. Reid was granted “FMLA leave” and then fired after he came back and did not meet PIP standards. Reid claimed he was terminated for exercising FMLA rights. Centric argued he was never eligible for FMLA in first place because Centric did not have 50 employees within 75 mile radius.

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Dan Strader

Merrill’s Wharf 254 Commercial Street Portland, ME 04101 Merrill’s Wharf 254 Commercial Street Portland, ME 04101

dstrader@pierceatwood.com

Meg LePage

mlepage@pierceatwood.com

PH / 207.791.1202 PH / 207.791.1382