Adjunct Law Prof Blog

Checking In On Child Not FMLA Protected

Brehmer v. Xcel, ___F. Supp. 2d___ (D. Min. Aug. 4, 2008) is an important FMLA lower court decision.

The court held that an employee was not entitled to FMLA leave to check in on the 11-year-old son of his girlfriend while the girlfriend underwent surgery. The employee conceded he was not entitled to FMLA leave on that day to care for his girlfriend, who was not a family member. But he alleged that he stood in loco parentis to the child, thus the boy was his "son" and a family member under the FMLA. Even assuming this were true, the employee did not establish that the child suffered from a serious health condition. Nor could the employee establish that he was absent to "care for" the son on that day. The undisputed facts show the employee accompanied his girlfriend to the hospital, the child stayed with his aunt all day, and the employee left the hospital a few times to go check on the child. While the employee's concern for the child "may be laudable," the court noted, his actions "do not qualify under the broadest reading of the statute as physical or psychological care under the FMLA. The FMLA does not protect mere visitation." Because his absence was not FMLA-protected, the employee could not assert an interference claim.

This is a tough decison, but it appears to be correct.

Mitchell H. Rubinstein

FMLA Cited As Evidence That Employer Accommodated Disability Under Rehabiliation Act

William Santacrose v. CSX Transportation, ___F.3d____(11th Cir. Aug. 5, 2008), is an important FMLA decision which is not scheduled to be officially reported. As you are about to see, that makes no sense.

In a nutshell, the employee requested intermittent FMLA leave to avoid working over-time which was granted.    After his leave was exhausted he sought to bring a Rehabilitation Act claim claiming the company was not accommodating his disability. In rejecting his failure to accommodate claim, the court relied on the fact that the company granted him FMLA leave. As the court stated:

As the district court correctly concluded, CSX reasonably accommodated
Santacrose’s disability by allowing him to use his company sick leave and FMLA
leave to avoid working overtime shifts. While Santacrose was not given the
precise accommodation he requested (an eight-hour restriction), a qualified
individual with a disability is not entitled to the accommodation of his choice, but
only to a reasonable accommodation. Stewart v. Happy Herman’s Cheshire
Bridge, Inc., 117 F.3d 1278, 1285-86 (11th Cir. 1997). Though Santacrose wanted
to avoid overtime without having to use his company sick leave or FMLA leave,
CSX was not obligated to fulfill this specific request, so long as it provided him
with a reasonable accommodation. Santacrose’s own testimony indicated he was
allowed to avoid working overtime and maintain an eight-hour restriction by using
his leave. Neither Santacrose’s company sick leave nor his FMLA leave has been
wholly diminished by his using leave time to excuse himself from overtime.

I believe the 11th is wrong-very wrong. An employer's compliance with the FMLA is not relevant to a duty to accommodate claim. The employer simply complied with the law. Similarly, if an employer violates the FMLA, it does not mean that he violated the ADA as well.

I am glad that this decision is not officially reported; however these days with everything searching electronically, the decision can be easily found. Hopefully, a petition for en banc review will be filed.

Mitchell H. Rubinstein
Moreover, Santacrose has never been disciplined for failing to work overtime
shifts or using his leave time in lieu of working overtime. Because CSX’s
accommodation of Santacrose’s disability is reasonable, the district court did not
err in granting summary judgment to CSX as to Santacrose’s discrimination claims
under the ADA and Rehabilitation Act.

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

Clandestine Surveillance Of Employee Defeats FMLA Claim

Vail v. Raybestos Products, ___F.3d___ (7th Cir. July 27, 2008), is an important FMLA decision.

An employer's off-duty police officer clandestine surveillance provided the employer with an honest suspicion that an employee was not using her medical laeve for the intended purpose of the leave due to her migraine headaches. Thus, the plaintiff employee's claim that the employer interfered with her FMLA rights by terminating her for abuse of leave was precluded. The officer saw the employee working for her husband's lawn-mowing business the next moring after she had taken medical leave for her evening shift.  As the court reasoned:

We have interpreted this to mean that an employer has not violated the FMLA if it
refused to reinstate the employee based on an “honest
suspicion” that the she was abusing her leave. Id.; Kariotis,
131 F.3d 680-81.
Here, Raybestos has clearly made this showing. Though
the use of an off-duty police officer to follow an employee
on leave may not be preferred employer behavior,
employers have certainly gone further than Raybestos.
See, e.g., Kariotis, 131 F.3d at 681 (hiring private investigators
to videotape employee). In any event, the information
gleaned from Sergeant Largent’s reconnaissance
was sufficient to give Raybestos an “honest suspicion”
that Vail was not using her leave “for the intended purpose.”
Vail had taken medical leave for her October 6,
2005 evening shift. The next morning, the off-duty police
officer saw Vail working for her husband’s lawn-mowing
business. Raybestos received this information after it
already suspected that Vail was gaming her leave in order
to work for her husband’s business. So when it heard
information consistent with what they suspected she
was doing while on leave, Raybestos decided to terminate
her. Vail’s call later that day—after a day of mowing
under Sergeant Largent’s gaze—stoked this suspicion.
As a result of this “honest suspicion,” Raybestos
did not violate Vail’s rights under the FMLA.

This decision appears to have been a "no brainer" and I am surprised that it made its way to the 7th Circuit.

Mitchell H. Rubinstein

9th Holds Damages For Missed Work Due to Stress Are Allowed For FMLA Violations

Farrell v. Tri-County, ___F.3d ___(9th Cir. June 27, 2008), is an important FMLA case. The case is also a classic example of a small case making important law-which happens all the time in labor law. At issue was  $1,100 in damages due to the wrongful denial of FMLA leave. The 9th drew a distinction between emotional distress damages, which are not recoverable from missed work damages due to stress caused by the denial of FMLA leave, which the court held are recoverable. As the court reasoned:

Here, the jury’s verdict reflects that Farrell was not
awarded FMLA damages for emotional distress, but rather
“for days of work that he missed because of stress or other
mental problems resulting from the wrongful denial of FMLA
leave.” (Emphasis added). Unlike emotional distress, which
requires valuating an intangible, see, e.g. Brumbalough, 427
F.3d at 1007-08, this calculation can easily be quantified, in
accordance with Section 2617, as an “actual monetary
loss[ ],” Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721,
740 (2003), by determining the wages Farrell would have
earned on the days he could have worked, but was unable to
do so because of TriMet’s violation.
[3] The jury’s verdict in this case is consistent with Tri-
Met’s position that “Congress decided that aggrieved employees
must bear the cost of their own psychological damages
when it comes to harm caused by employers violating
FMLA” because the verdict does not require TriMet to compensate
Farrell for “psychological damages.” Rather, the verdict
requires TriMet to compensate Farrell for the wages he
lost “by reason of [its] violation.” 29 U.S.C.
§ 2617(a)(1)(A)(i)(I). The jury’s verdict was limited to wages
actually lost as a result of TriMet’s FMLA violation, and thus,
the award was not “a back-door means of recovery for psychic
injuries.”

Mitchell H. Rubinstein

Supremes Deny Cert Over Whether FMLA Waivers Are Valid

  In Progress Energy v. Taylor, 493 F.3d 454 (4th Cir. 2007), the 4th Circuit held that an individual cannot waive FMLA rights unless the waiver was approved by a court or the Department of Labor. The 4th Circuit strictly construed 29 CFR 825.220(d) which provides: "Employees cannot waive, nor may employers induce employees to waive, their rights under the FMLA." Notice how this language only refers to "employees."

Obviously, such a holding discourages settlement. Unfortunately, the Supremes recently denied cert. in Progress Energy. This issue has generated a conflict in the circuits and is ripe for law review commentary.

Mitchell H. Rubinstein

Hat Tip:  FMLA Blog

California Legislature Passes Paid Sick Leave Bill

The Healthy Families, Healthy Workplace Act, A.B 2716 (available here) was passed by the California Legislature on May 28, 2008. This Bill would allow employees to earn seven or more paid sick days in a calendar that can be used to recover from illness, care for a sick family member or recover from domestic violence or sexual assault. It is not known what Governor Schwarzenegger's position is. If signed enacted into law, this statute  would make California the first state to require paid sick leave for employees. Only San Francisco and Washington, DC, have passed mandatory sick leave legislation.

Mitchell H. Rubinstein

5th Rejects Association Claim Under FMLA

  Eisensohn v. St. Tammany Parish Sheriff's Office, ___F.3d___( 5th Cir. June 6, 2008) is an important case. The court read the anti-retaliation portions of the FMLA literally and refused to expand the FMLA to provide coverage based upon one's family relationship. The court recognized however, that some courts have expanded Title VII to include such claims. Never-the-less, the court concluded:

In light of Holt and our concern about setting aside the plain meaning of
a statute, we decline to provide an interpretation of § 2615(b) divorced from its
literal meaning. See Caminetti v. United States, 242 U.S. 470, 485 (1917) (“It
is elementary that the meaning of a statute must, in the first instance, be sought
in the language in which the act is framed, and if that is plain . . . the sole
function of the courts is to enforce it according to its terms.” (citations omitted)).
While Holt is not binding, the protections afforded under the ADEA are actually
greater than the protections afforded under the FMLAbecause § 623(d) protects
an individual who participates in an investigation, proceeding or litigation in
any manner, whereas § 2615(b) is limited to specific enumerated activities. We,
therefore, see no basis in the statute for providing more protection to the
relatives and friends of FMLA complainants than the protections offered to the
relatives and friends of ADEA claimants. See Faris, 332 F.3d at 322 (“We know,
however, of no good reason . . . why the government would proscribe waiver for
FMLA retaliation claims and yet favor waiver of claims for age discrimination
under ADEA . . . .”).

Mitchell H. Rubinstein

FMLA Amended To Apply To Military Families

FMLA Expanded to Accommodate Military Families is an interesting June 2, 2008 New York Law Journal article. It discusses the National Defense Authorization Act of Fiscal Year 2008 (NDAA). This statute  expands coverage of the Family and Medical Leave Act of 1993 (FMLA) to families of military personnel in two major respects.

It first extends FMLA coverage to a "qualifying exigency" relating to a family member's military service. Additionally, this new  law creates an entirely new category of FMLA leave called "service-member family leave," which entitles employees to 26 weeks of leave in order to provide care for a family member who has been injured during military service.

This is an important amendment and we can expect litigation over the term "qualifying extigency." As the article states:

Currently, there is no definition for the term "qualifying exigency." Rather, Congress has instructed the secretary of Labor to implement regulations to define the term. Depending upon the scope of the definition, employees may be able to use FMLA leave for myriad reasons relating to the active duty of a family member. For instance, U.S. Representative Jason Altmire, D-Pa., made the following statement concerning the qualifying exigency leave provision on the House floor:

This amendment allows the immediate family of military personnel to use [FMLA] time for issues directly arising from deployment and extended deployments. The wife of a recently deployed military service member could use the [FMLA] to arrange for childcare. The husband of a service member could use the [FMLA] to attend predeployment briefings and family support sessions. The parents of a deployed service member could take [FMLA] time to see their raised child off or welcome them back home.

While litigation can be expected, I suspect that courts will interpret FMLA service related leave requests very liberally in favor of the service member. I expect that courts may look to other miltary laws which treat veterans and returning service members very favorably because of their important service to this country.

Mitchell H. Rubintein

New Jersey Becomes The 3rd State To Require PAID Family and Medical Leave

On May 2, 2008, N. J. Governor Jon S. Corzine signed into law a statute which mandates PAID family and medical leave. It is the third such program in the country and will be financed by payroll deductions. A summary of this new statute can be found here. The Governor's Press Release is available here. The Press Release describes this new statute as follows:

As a worker-funded insurance program, the new law:

• permits up to 6 weeks of leave for workers to provide care for a sick family member or care for a newborn or newly adopted child.
• allows workers to receive no more than two-thirds of their weekly pay, up to a maximum weekly benefit of $524 in 2008. The employer may require the employee take up to two weeks of available sick or vacation pay and workers must provide as much as 30-days advance notice of leave.
• requires no contributions from employers. The program is 100% funded by employee contributions, through a payroll deduction on the first $27,700 earned (in 2008). The deduction would amount to approximately $33 a year, or 64 cents a week.
• provides small businesses, (50 or fewer employees), with the option to replace employees receiving FLI benefits. Small businesses do not have to hold jobs open and provisions in the law allow small businesses, to fill a worker’s position with a permanent replacement without running the risk of being sued.
• prevents fraudulent claims by using measures contained in the Temporary Disability Benefits Law, including criminal penalties and increased fines for those who improperly claim benefits. Employers receive notice when benefits are claimed and have the right to appeal eligibility determinations.
• ensures benefits would run concurrently with any leave provided under the NJ Family Leave Act and the federal Family and Medical Leave Act - not consecutively.
• offers employees the option to receive benefits intermittently creating a flexible arrangement to meet the needs of both employees and employers.
• The Department of Labor estimates that approximately 38,000 individuals – about 1 percent of New Jersey’s workforce – will collect benefits annually. Studies over the past four years in California show that 87 percent of those who collected benefits were parents of a newborn or newly-adopted child.

Mitchell H. Rubinstein

Fact That Employee Obtains Job With Another Employer Does Not Mean That She Does Not Have A Serious Health Condition

Lonicki v. Sutter Health Central, ___Cal. Rptr. ___(Calif. Supreme Court April 7, 2008), is a major decision intrepreting California's state law version of the FMLA. It is a criticallly important decision as federal courts may look to this decision for guidance. The holds that the fact that an employee is able to hold down a job at another employer does not necessarily mean that he does not have a serious health condition. As the court reasoned:

When a serious health condition prevents an employee from doing the tasks
of an assigned position, this does not necessarily indicate that the employee is
incapable of doing a similar job for another employer. By way of illustration: A
job in the emergency room of a hospital that commonly treats a high volume of
life-threatening injuries may be far more stressful than similar work in the
emergency room of a hospital that sees relatively few such injuries. Also, the
circumstance that one job is full time whereas the other is part time may be
significant: Some physical or mental illnesses may prevent an employee from
having a full-time job, yet not render the employee incapable of working only part
time.

While the decision seems logicial, it does rub me the wrong way in that it allows an employee to due similar work for another employer while at the same time claiming he does not have serious health condition.

Mitchell H. Rubinstein

N.J. May Become The Third State To Mandate PAID FMLA Type Leave

N.J. Weighs Paid Work Leave Bill is a very interesting April 7, 2008 A.P. article. The FMLA requires that unpaid leave be provided for up to 12 weeks. This Bill would require that certain eligible leave be paid. It would be financed through payroll deductions. As this article states:

The program would be paid for through a payroll deduction that legislative officials estimate would cost each taxpayer $33 per year. Workers who take leave would get two-thirds of their salary, up to $524 per week, with an estimated average weekly benefit of $415.

Opponents liken the payroll deduction to a tax, and they fear it will increase if the program doesn't earn enough money to meet its needs.

If it passes, New Jersey would adopt similar policies to those in California and Washington state. Federal law allows some workers to take up to 12 weeks of unpaid leave.

This is an important development to watch. Many believe that the FMLA provides an inadequate level of protection for employees.

Mitchell H. Rubinstein

Constructive Notice Under FMLA

Family, Medical Leave Act: Constructive Notice for Leave is an interesting March 26, 2008 New York Law Journal article by Dean L. Sliverberg and Melissa Beekman. This article discusses the Oct. 7, 2998 Seventh Circuit decision in Stevenson v. Hyre Electric Co., which held that although an employee may not have given direct notice for leave under the Family and Medical Leave Act (FMLA), she may have provided constructive notice of her need for FMLA by her unusual workplace behavior, apparently precipitated by a stray dog in the office. The authors conclude:

This decision will probably have large implications for employers by forcing them to seriously scrutinize the circumstances surrounding an employee's absence when considering whether the FMLA, along with its attendant rights and obligations, are triggered.

It is hard to argue with the rational of the court. The FMLA notice requirements are not complex. No magic words are needed. When an otherwise good employee transforms virtually over night and has bizzare behaviors at work, it might be obivious that something is wrong and the employee is in need of leave. On the other hand, are employers expected to have a crystal ball where they can read into the employee's medical or personal problems?    

This is a case of first impression that appears ripe for law review commentary.

Mitchell H. Rubinstein

Feeling Stressed Out Is Not A Serious Health Condition Under The FMLA

Lackman v. Recovery Services of New Jersey, Inc.,__F Supp.2d. ___, 2008 U.S. Dist. LEXIS 11085 (D.N.J. Feb. 13, 2008)(registration required), is an important FMLA case. The court held that an employee's statement that he felt "stressed out" did not put an employer on notice that the employee had a serious health condition under the FMLA. Therefore, the employee was not entitled to FMLA leave.

This case demonstrates once again that the protections under the FMLA are rather narrow.

Mitchell H. Rubinstein   

Breaking News: FMLA Amended To Double Amount of Leave Service Members Are Entitled Too

On Jan. 28, 2008, President Bush signed an amendment to the FMLA into law which doubles the amount of leave injured veterans and their family members are entitled too. Specifically, eligible employees are entitled up to 6 months of FMLA leave to care for an injured service member and 12 weeks of leave if a service member is called up for active duty under certain circumstances.

The Department of Labor summarized this new statute as follows:

On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA), Pub. L. XXXX. Among other things, section 585 of the NDAA amends the Family and Medical Leave Act of 1993 (FMLA) to permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

The provisions in the NDAA providing this leave are effective as of the date of the President’s signing. The Department of Labor is working quickly to prepare more comprehensive guidance regarding rights and responsibilities under this new legislation. In the interim, WHD will require employers to act in good faith in providing leave under the new legislation. Because the NDAA amends the FMLA, FMLA-type procedures should be used as may be appropriate (for example, procedures regarding substitution of paid leave and notice).

The NDAA also permits an employee to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that 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.” By its express terms, this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining “any qualifying exigency.” DOL is expeditiously preparing such regulations. In the interim, DOL encourages employers to provide this type of leave to qualifying employees.

A copy of the FMLA as amended is available here. H.R. 4986 is available here. A sample FMLA leave policy written by the management firm of Jackson, Lewis is available here.

Mitchell H. Rubinstein