6th Holds FMLA Prohibits Retaliation

Bryant v. Dollar Rental, ___F.3d___( 6th Cir. Aug. 15, 2008), is an important FLSA decision. In a well written decision, the 6th held that the FMLA prohibits retaliation. The court summarized the employer's argument as follows:

Dollar General’s principal argument on appeal is that the statutory text of the FMLA does
not prohibit retaliation of the type that Bryant alleged and that the jury found occurred. That is,
Dollar General asserts that the FMLA does not bar an employer from firing an employee because
that employee took FMLA leave. Dollar General instead contends that the relevant statutory text
pertains only to situations in which an employee has “oppos[ed] any practice made unlawful” by the FMLA. 29 U.S.C. § 2615(a)(2). We conclude that Dollar General’s argument has no merit and that the FMLA prohibits an employer from terminating an employee for taking FMLA-guaranteed leave. Dollar General advances a strictly textual argument that the FMLA does not prohibit
retaliation against employees who exercise FMLA leave.

In rejecting this argument, the court reasoned:

The structure of the FMLA itself and its legislative history also strongly support interpreting
§ 2615(a)(2) as prohibiting retaliation against employees who use FMLA leave. Section 2612(a)(1)
“entitles qualifying employees to twelve weeks of unpaid leave each year if, among other things, an employee has ‘a serious health condition that makes the employee unable to perform the functions of the position of such employee.’” Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003) (quoting 29 U.S.C. § 2612(a)(1)(D)). After an employee takes such leave, the FMLA generally requires that, upon the employee’s return, the employer restore the employee “to the position of employment held by the employee when the leave commenced” or restore the employee “to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1). As the Eighth Circuit has observed, “the FMLA does not provide leave for leave’s sake, but instead provides leave with an expectation an employee will return to work after the leave ends.” Throneberry v. McGehee Desha County Hosp., 403 F.3d 972, 978 (8th Cir. 2005). Any “right” to take unpaid leave would be utterly meaningless if the statute’s bar against discrimination failed to prohibit employers from considering an employee’s FMLA leave as a negative factor in employment decisions. Interpreting § 2615(a)(2)’s ban on discrimination in a manner that would permit employers to fire employees for exercising FMLA leave would undoubtedly run contrary to Congress’s purpose in passing the FMLA. See Cavin, 346 F.3d at 719 (noting that “Congress enacted the FMLA because . . . ‘there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods’” and that “[t]he FMLA ‘accommodates the important societal interest in assisting families by establishing minimum labor standard[s] for leave’”) (quoting 29 U.S.C. § 2601(a)(4) and H.R. Rep. No. 103-8(I), 103d Cong., 1st Sess. 1993, at *21). Indeed, the legislative history to the FMLA summarized the testimony of numerous individuals who lost their jobs after taking medical and family leave. H.R. Rep. No. 103-8(I), 103d Cong., 1st Sess. 1993, at *26 (“There are many similar stories of workers who have been fired when their employers refused to provide an adequate leave of absence. These accounts, and many others like them presented to the committee over the past eight years, illustrate the human and economic costs of terminating employees at times of great family need.”).
In light of the foregoing, we conclude that the FMLA itself prohibits employers from taking
adverse employment actions against employees based on the employee’s exercise of FMLA leave.
We thus also conclude that the Department of Labor’s interpretation of § 2615 in § 825.220 is a
reasonable interpretation of the statute and a valid exercise of agency authority.

The decision in this case is clearly correct and a no-brainer. However, the employer was able to make a colorable argument which I found somewhat surprising.

Mitchell H. Rubinstein