Employees may bring two types of Family and Medical Leave Act (FMLA)-related claims against their employers: first, interference with their rights under the FMLA, and, second, retaliation against them for requesting time off under the FMLA, exercising rights under it, or making a claim.
Both individuals and organizations may be liable for FMLA violations. Claims must generally be filed within 2 years from the date of the adverse action (firing, demotion, denial of time off, etc.). In the case of willful violations, employees have 3 years to file claims.
Interference
Employers can unlawfully interfere with an eligible employee’s FMLA rights in a number of ways, such as:
- Outright refusal to authorize legitimate requests for leave
- Discouraging employees from taking leave
- Manipulation to try to avoid FMLA responsibilities altogether (for example, shifting employees around to avoid the 50-worker rule requiring FMLA coverage)
Sometimes, however, unlawful interference with FMLA rights is more subtle. An employer also interferes with an employee’s FMLA rights by weighing the employee’s FMLA usage negatively in performance evaluations or otherwise holding it against the employee in employment decisions.
To prove the initial elements of an interference claim, an employee must show:
- She was entitled to FMLA leave (giving proper notice can be crucial here);
- Her employer’s adverse action interfered with her right to take leave; and
- The employer’s adverse action was related to her exercise or attempt to exercise FMLA rights.
Employers will try to negate one or more of these factors by attacking the employee’s eligibility for leave or by asserting there was no interference or that any adverse action was based on factors other than the exercise of FMLA rights.
It may seem logical that an employee can’t claim interference if he gets to use the requested leave, but courts haven’t always found that to be the case. Watch out if you want to take action against an employee based on problems that occurred before she returned to work from leave.
Interference claims in the Courts
In one case, an employer argued that because the employee took the FMLA leave, she couldn’t claim interference, but the court disagreed. To disallow the interference claim, one court said, would give employers an incentive to make a decision to fire an employee who was on FMLA leave, but hold off on implementing the decision until the employee returned from leave, hoping to insulate itself from interference liability.
The court didn’t want to send that message so it allowed the employee’s FMLA claim to go forward, subject to the employer’s defenses, including a legitimate business purpose for the firing that had nothing to do with use of FMLA leave.
Considering an employee’s previous FMLA-protected absences in making a decision on work restrictions amounted to interference with FMLA rights, the 6th Circuit—which covers Kentucky, Michigan, Ohio, and Tennessee—found in a recent case.
In what the employer claimed was an effort to protect the employee from further injury, its medical director placed severe work restrictions on her, which prevented her from returning to her job. The medical director considered a previous FMLA-protected absence in formulating the restrictions, believing erroneously she had sustained a neck injury (she in fact had not) that was exacerbating the neck problems she had just reported. In an interference case, the employer’s intent doesn’t matter, and it didn’t in this case.
Forcing an employee to take FMLA leave can be considered interference with future FMLA usage if the employee finds that the forced leave prevents her from taking FMLA leave she would have otherwise been entitled to take, courts have found.
Steps to prevent interference claims
Taking these steps can help you prevent interference claims:
- Formally consider all oral and written requests that could be deemed to qualify under the FMLA, even if the reasons given for the leave are multiple or suspect. Be consistent in your process.
- Watch the timing of any adverse actions against employees seeking/taking FMLA leave.
- Even if you allow leave, take care when basing adverse action only on factors predating the employee’s return-to-work because the employee may argue a link to FMLA leave.
- Good documentation is crucial in breaking any alleged causal links between adverse actions and FMLA rights. Documentation can include not only the details about an employee’s job performance, but objective data on the economic climate in which the business is operating and measures of the performance of the business or organization, such as revenues, expenses, profits, and losses.
- Conversely, train your supervisors and managers to be careful about what they put in writing, particularly with e-mails. They’ve often come back to bite employers that are trying to defend discrimination claims, even in interference cases in which a bad motive need not be proven.
- When in doubt, and in close cases, consult with experienced counsel.
In our next installment, we’ll cover retaliation claims under the FMLA.