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‘Willful’ Violations under FMLA Clarified

by Alyssa Yatsko

Under the Family and Medical Leave Act (FMLA), an employee has two years from the date of an FMLA violation to file a lawsuit against his employer. If the violation was “willful,” however, the employee has three years to file the lawsuit. Up until now, the Tenth U.S. Circuit Court of Appeals had provided no guidance on what constitutes a willful action that would allow an employee to reach back to events that occurred three years in the past.

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USPS fires employee with attendance problems
Tony Bass worked for the U.S. Postal Service (USPS) from 1993 to May 2002. During his tenure with the USPS, he repeatedly violated its attendance and leave policies. The problems became so serious that in December 2001, the USPS entered into a last-chance agreement with him.

Under the agreement, Bass was informed that he would be fired if he violated the attendance and leave policies again. In February 2002, he violated the agreement, but the USPS agreed to give him one more chance and extended the last-chance agreement another eight months.

On March 6, 2002, Bass requested FMLA leave for chronic back pain. When the USPS requested medical certification, he provided incomplete information. The USPS informed him the next day that he had 15 days to provide a new certification that included specific information about the frequency and duration of his chronic back pain. He submitted a certification within the deadline, but again it was incomplete.

After Bass provided the second incomplete certification, a USPS employee sat down with him, explained his rights and obligations under the FMLA (including the need to submit a medical certification), and gave him a new deadline of April 16, 2002, to submit a complete medical certification. This time, he missed the deadline and didn’t submit the certification until April 23, 2002.

The USPS then notified Bass that because he missed the deadline, the days of work he had missed would be considered unscheduled absences. Because he was in violation of his last-chance agreement, the USPS terminated him.

FMLA Compliance Manual

Employee fires back with FMLA claim
Some two years and 11 months after he was fired, Bass sued his former employer, claiming the USPS interfered with his right to FMLA leave. The postal service asked the court to dismiss his claim, arguing that it was barred by the Act’s two-year statute of limitations period.

Bass claimed the violation was willful, which gave him a three-year time limit to file a lawsuit. Finding the two-year statute of limitations applied, the district court granted the USPS’ request and dismissed the case. Bass appealed.

The Tenth Circuit was faced with deciding when an employer’s FMLA violation is considered willful, entitling the employee to a three-year period to file a legal action.

Having never addressed the issue before, the court stated that to prove willfulness under the FMLA, the employee must show that “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” The court went on to say that a finding of willfulness won’t necessarily follow if the employer tried to comply with the law and tenable reasoning supported its conduct.

In this case, the court held that the USPS didn’t act willfully because the evidence showed that it attempted to adhere to the FMLA’s provisions. Specifically, its actions complied with the FMLA regulations that allow an employer to condition leave on the employee’s submission of a properly completed medical certification before the leave is to begin.

The court also noted that the USPS gave Bass specific notice of his rights and obligations under the FMLA, including his obligation to provide sufficient medical certification, and told him what the consequences would be if he failed to submit the certification by the deadline it set.

After the USPS gave him not one, but two, chances to submit the certification by its deadline, Bass failed to present the form in a timely manner. The court held that the postal service’s refusal to give him unlimited time within which to submit documentation supporting his FMLA leave request wasn’t required under the law or its regulations and therefore didn’t evince willful misconduct.

The court noted that in cases where willfulness has been found, the employer either deliberately chose to avoid researching the law’s terms or affirmatively evaded them. The USPS did neither. Bass v. Potter, Case No. 06-5149, March 15, 2008.

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Bottom line
Trying to defend an FMLA case three years after the fact is tough. Witnesses are gone, documentary evidence has disappeared, and memories of the events have faded. To avoid having to defend a stale case, make sure you comply with your FMLA obligations. Compliance with the law can shorten the statute of limitations to two years — if not eliminate the potential for a lawsuit altogether.

For more information on this case, contact Alyssa Yatsko at (303) 295-8138

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