Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Monday, November 16, 2009

Donning Time Does Not Count Towards 1250 Hours Requirement Under FMLA

The Supremes have declined to grant certiorari in a case in which the Seventh Circuit held that an employee could not count towards the 1,250-hour minimum for Family and Medical Leave Act (FMLA) eligibility the three to five minutes she spent each workday donning and doffing her gloves, shoes, and a work shirt. Those articles of clothing did not constitute extensive and unique protective equipment that was integral and indispensable to her principal activities as a mail handler for the United States Postal Service (USPS), the Seventh Circuit reasoned.

The employee's petition for certiorari asserted that the Seventh Circuit's holding conflicted with decisions of the Third and Ninth Circuit Courts of Appeals, and with the Secretary of Labor's interpretation of the Act, as set forth in the Postal Service's petition for rehearing by the Seventh Circuit. The petition for rehearing, which disavowed the rationale of the Seventh Circuit's decision, had been supported by an amicus brief from the Secretary of Labor, according to the employee's petition for certiorari. (Case below: Pirant v. U.S. Postal Service, 542 F.3d 202 (C.A.7-Ill. 2008), as mod. on den. of reh'g, (C.A.7-Ill 2008).)

Law review commentary on this issue might be in order.

Mitchell H. Rubinstein

November 16, 2009 in FMLA, Law Review Ideas, Lawyer Employment | Permalink | Comments (0)

Wednesday, September 30, 2009

Appeals court finds plenty of evidence to support FMLA claim

DeFreitas v Horizon Investment, ___F.3d___(10th Cir. August 14, 2009, is an interesting case. Plaintiff  was discharged the day after telling her employer she needed a full six weeks off to recover from a hysterectomy (per doctor’s orders). The court held that she presented sufficient evidence to make out a prima facie claim for FMLA interference.  The supervisor expressed concern about the six-week time frame and said his sister had returned to work a few days after her hysterectomy. In explaining the discharge, the supervisor said: “You are very talented and I know, when back in the pink of health, [you] will bounce back and secure another job without even a glitch.” He told a prospective employer that the employee left the company due to “illness” and, as for “areas for improvement,” he wrote “take better care of herself.” As the court observed, ”One reason that a reasonable jury could reject Defendants’ [alternate] assertions regarding the grounds for firing her is that there appears to have been another ground for her firing, a very simple, commonsensical one—namely, that she was missing too much work. This is hardly an unheard-of reason for an employer to discharge an employee.” Noted the court: “It would be eminently reasonable to believe that an employer who was ignorant of the FMLA,” as the employer here admitted, “would engage in the very practice that the FMLA was enacted to prevent.” Accordingly, the appeals court found a genuine issue of fact remained as to whether the plaintiff would have been fired regardless of whether she took FMLA leave.
Sometimes you just cannot make these cases up.

Mitchell H. Rubinstein

September 30, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 29, 2009

No need to reinstate employee before discharging for cause under FMLA

(Daugherty v Wabash Center, ___F.3d___(7th Cir. August 14, 2009), is an unusual FMLA case. Plaintiff contended that his employer was “absolutely prohibited from terminating him” while he was out on FMLA leave. He also claimed an employer who discovers a reason to fire an employee while the employee is out on leave must first reinstate him upon conclusion of his medical leave before discharging him. The Seventh Circuit disabused the plaintiff of these notions. The FMLA only entitles employees to the same position they would have otherwise been entitled to, so “an employer may terminate an employee—even when on leave—if the employer discovers misconduct that would justify termination had leave not been taken.” Such was the case with the plaintiff here, where it was undisputed that he had performance issues and he presented no viable defense to the employer’s discovery that he deleted thousands of company computer files and purchased computers on the employer’s account that were delivered to his home. Further, while the plaintiff was on leave, the employer requested that he turn over his keys and computer passwords. The plaintiff insisted that by making these requests, the employer was asking him to “work.” The appeals court dismissed this contention as well, rejecting the employee’s claim that he was unlawfully discharged for refusing work while on medical leave.

Mitchell H. Rubinstein

September 29, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 5, 2009

Estoppel did not bar employer from raising FMLA non-eligibility defense

6thcir
Dobrowski v Jay Dee Contractors, Inc, ____F.3d___(6th Cir. July 8, 2009), is an important FMLA case to be aware of. The 6th held that an employer’s representations that an employee was being given FMLA leave did not bind it under equitable estoppel such that the FMLA’s protections were extended to him even though he was not an eligible employee. The employee learned his position as a mechanical engineer had been eliminated after he attempted to return to work from an approved leave for an elective surgical procedure to treat his epilepsy. Prior to his surgery, he applied for leave on an FMLA form and received written notice from his employer that his leave was “pursuant to the [FMLA]” and that he was an “eligible employee” even though he was, in fact, not covered by the FMLA because the employer did not have the requisite 50 employees within 75 miles of the employee’s worksite. Deciding not to impose an additional requirement that the employee show knowledge or bad faith on the part of the employer, the Sixth Circuit found that, although the employer’s actions amounted to a definite misrepresentation of his eligibility, the employee could not show that he detrimentally relied on this misstatement of eligibility. There was no evidence to show his decision to have surgery was contingent on his understanding of his FMLA eligibility status. Rather, the record showed he had already decided upon the surgery by the time he was informed of his eligibility. Moreover, he offered no evidence to support his assertion that he would have rescheduled the surgery had he known that he was not FMLA eligible.
This was a tough decision, but it appears to be correct. Query whether on different facts, an equitable estoppel claim would be allowed.

Mitchell H. Rubinstein

August 5, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Monday, August 3, 2009

Equitable estoppel does not save public employee’s FMLA claim

1stcir
Nagle v Acton-Boxborough Regional School District, __F.3d___(1st Cir. July 30, 2009), is an important case. The court held that a part-time employee of a public school district who claimed she was given oral assurances that she could take leave to care for her ailing spouse even though she had not worked enough hours to qualify for FMLA leave could not proceed with her FMLA claim based on equitable estoppel. Why? Because estoppel extends to public employers only in exceptional situations that are "hen’s-teeth rare," wrote the court, and the facts at hand did not qualify.
 Had the plaintiff worked for a private employer, the case might have gone the other way, noted the court. The plaintiff would have been afforded the opportunity to demonstrate that she reasonably relied on the employer’s alleged misrepresentation to her detriment. "Some mechanism should exist for employees to get rulings on whether they are entitled to FMLA leave," the First Circuit opined, in dicta, "and regulations under the existing statute, recently strengthened but after the events in this case, now require employers to provide written rulings on request.
This is a common issue and law review commentary addressing it would be most welcome.

Mitchell H. Rubinstein

August 3, 2009 in FMLA, Law Review Ideas | Permalink | Comments (0) | TrackBack (0)

Sunday, July 19, 2009

Public Employee and Individual Liability Under FMLA

Barnes v. LaPorte County, ___F.Supp.2d___ 2008 WL 111019 (N.D. Ind. 2008), is an interesting case.  In a case of first impression, the court held that a public employee who acted directly or indirectly in the interest of an employer satisfied the definition of employer under the FMLA. Therefore, the employee could be subject to liability in his individual capacity. There are a number of these types of decsions under the FLSA.

Mitchell H. Rubinstein 

July 19, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 24, 2009

Indiana Supreme Court: Multiple jobs with single employer- FMLA-eligible

Gary Community School Corp v Powell, ___N.W.2d___(Indiana May 19, 2009), is an interesting FMLA case coming out of the Indiana Supreme Court. The state Supreme Court held that an employee who holds multiple positions with an employer is eligible for FMLA leave from each position if the total number of hours he works for the employer satisfies the FMLA’s hours of service requirement. This was an issue of  first impression for the state high court.
Accordingly, the plaintiff, a high school math teacher who also held paid coaching positions at the school was FMLA-eligible as to the coaching jobs even though he did not work the FMLA-required 1,250 hours as a coach during the relevant time period. The teacher lost his positions as head football coach and assistant basketball coach after he developed a blood clot in his leg on the second day of football practice that required hospitalization and FMLA leave. After he complained to the principal and then to a local newspaper that he was fired for taking leave for his injury, the teacher was denied any future coaching contracts. Appealing a jury verdict in the teacher’s favor on his FMLA retaliation claim, the school argued the teacher was ineligible for FMLA leave with respect to the coaching position because he had not worked the requisite 1,250 hours in that capacity. The court rejected this notion, finding him FMLA-eligible for the coaching positions. “Importantly, the test for eligibility is phrased in terms of `hours of service’ to an `employer,’ not service in any particular position,” the court reasoned. It was irrelevant that the plaintiff worked under separate contracts for each job and may have been issued separate paychecks for coach and teacher. Moreover, the court held, a jury could reasonably have found that the employer retaliated against the plaintiff for his complaints about not being reinstated and his statements to that effect to a local newspaper.

MItchell H. Rubinstein

June 24, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 9, 2009

Employer’s FMLA notice requirements can be enforced as long as practicable

On May 5, the DOL’s Wage and Hour Division released an opinion letter (FMLA2009-1-A) on employee notification procedures under the FMLA related to employer attendance and no call/no show policies. The DOL’s revised FMLA regulations, which took effect on January 16, make clear that the Act requires employees to provide notice of the need for leave 30 days before the leave is to begin, wherever possible. Where it is not possible, employees must provide notice “as soon as practicable.” Also, as stated in the regulations, “where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced.” The opinion letter expressly supersedes a January 1999 opinion letter FMLA-101, which had been interpreted to prohibit employers from “applying internal call-in policies, disciplining employees under no call/no show policies, or disciplining employees who call in late, as long as the employees provide notice within two business days that the leave was FMLA-qualifying, regardless of whether they could have practicably provided notice sooner.”

June 9, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Sunday, May 31, 2009

Employee Denied Injunction In FMLA Case Even Though He Established Probability Of Sucess On The Merits

Cantrall v Zeon Chemicals, LP, ___F.Supp.2d____(W.D. Ky. April 23, 2009), demonstrates how difficult it is to get an injunction ordering reinstatement pending a resolution of an employment dispute. A federal district court declined to issue a preliminary injunction prohibiting an employer from improperly using its attendance program to terminate an employee who was a plaintiff in ongoing FMLA litigation, rejecting the employee’s contention that an injunction is necessary to prevent the possibility of his being unlawfully terminated prior to the trial date. The court found the employee will likely prevail on the merits of his claim—the employer had acted on “the questionable belief that it can end Plaintiff’s FMLA protections based upon a medical opinion that is later overruled by a third physician.” Nonetheless, the employee has an adequate remedy at law if his employer is found to have violated the Act.

Mitchell H. Rubinstein

May 31, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 20, 2009

FMLA Retaliation Found Where Employer Cancelled Health Insurance

7thCirseal
Ryl-Kuchar v Care Centers, Inc, ___F.3d___(7th Cir. May 11, 2009), is an interesting FMLA case. The 7th held that a jury could reasonably have found an employer violated the FMLA when it retroactively canceled an employee’s health insurance benefits after she went on leave.
The plaintiff began working from home after she became pregnant. During that time, her work schedule dropped to below 35 hours per week, but she remained a salaried employee and her pay did not change. After giving birth to triplets, the employee returned to work, but she went on FMLA leave soon after and eventually resigned. A short time later, she learned the employer had canceled her health insurance retroactive to the date that her work schedule dipped to less than 35 hours, having rendered her a part-time employee and thus ineligible for health benefits.
Significantly, it was only after she took FMLA leave that the employer audited her payroll records and found this “mistake.” The appeals court found there was sufficient, if not overwhelming, evidence from which the jury could infer retaliation, including the timing of the decision and the employer’s express concerns over rising health care costs, as noted in an employee newsletter. A reasonable jury could find the plaintiff was in fact a full-time employee until she took FMLA leave, and that the employer’s rationale for waiting so long to determine the plaintiff’s status had changed to part-time was pretextual.

Mitchell H. Rubinstein

May 20, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Thursday, May 7, 2009

Paid FMLA Leave Amendment Introduced Into Congress

H.R. 1723 was recently introduced into Congress which would significantly amend the FMLA. The two major changes to the current system are that it establishes an insurance fund as part of the Department of Labor which provides for paid sick leave. Additionally, leave to care for domestic partners is also covered. The amount of paid leave would be as follows:

 IN GENERAL- Subject to paragraph (2), an eligible employee’s leave benefit for any workday on which the employee takes leave as described in subsection (a) shall be calculated as--

(A) in the case of an employee with an annual income of not more than $20,000, an amount equal to 100 percent of that employee’s daily earnings;

(B) in the case of an employee with an annual income of more than $20,000 and not more than $30,000, an amount equal to the greater of--

(i) 75 percent of that employee’s daily earnings; or

(ii) 100 percent of the daily earnings of an employee with an annual income of $20,000;

(C) in the case of an employee with an annual income of more than $30,000 and not more than $60,000, an amount equal to the greater of--

(i) 55 percent of that employee’s daily earnings; or

(ii) 75 percent of the daily earnings of an employee with an annual income of $30,000;

(D) in the case of an employee with an annual income of more than $60,000 and not more than $97,000, an amount equal to the greater of--

(i) 40 percent of that employee’s daily earnings; or

(ii) 55 percent of the daily earnings of an employee with an annual income of $60,000; and

(E) in the case of an employee with an annual income of more than $97,000, an amount equal to 40 percent of the daily earnings of an employee with an annual income of $97,000.

Of course, employers can continue to offer paid leave as many due now.

Mitchell H. Rubinstein

 

May 7, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Sunday, May 3, 2009

Employee's alteration of FMLA application results in denial of leave

7thCirseal Smith v The Hope School,___F.3d___(7th Cir. March 30, 2009), is an important FMLA case to be aware of. The 7th held that an aide at a residential facility was neither entitled to FMLA leave nor fired for asserting her rights under the Act, having fraudulently altered a healthcare application for leave. The employee contended on appeal that the alteration was irrelevant because she was entitled to medical leave based on the authentic, unchanged information on the application, and maintained that there was sufficient evidence to reach the jury on her interference and retaliation claims. However, the 7th pointed out that in addition to submitting false paperwork to her employer, she had backdated the form and submitted a second form that her physician never filled out or signed. The employee was not entitled to FMLA leave on the basis of falsified paperwork. Moreover, since her employer was entitled to deny plaintiff's request for FMLA leave under these circumstances, it was also entitled to terminate her employment because of her unexcused absences from work during this period.

Mitchell H. Rubinstein

May 3, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Friday, April 24, 2009

Employee may be fired if performance problems uncovered on FMLA leave

7thCirseal Cracco v Vitran Express, Inc, ___F.3d___(7th Cir. March 17, 2009), is an interesting case. The 7th held that while the FMLA requires employees to be restored to their same or equivalent position upon returning from leave, it did not bar the discharge of a manager returning from leave whose employer, a trucking company, uncovered his serious performance problems while he was on leave. During plaintiffs leave, the employer hired several replacements to cover his responsibilities who discovered numerous problems during the manager's tenure. Thereafter, a thorough company investigation was taken, which, among other things, revealed the manager's "deliberate attempts to disguise late and damaged deliveries." On the day that he was to return from FMLA leave, the manager was fired. The court  held that as to the manger's reprisal claim "'the fact that the leave permitted the employer to discover the problems cannot logically be a bar to the employer's ability to fire the deficient employee." Otherwise, the employer would be forced to continue employing substandard employees, or risk facing liability under the FMLA. The manager's interference claim also failed because the company "present[ed] evidence to show that the [manager] would not have been entitled to his position even if he had not taken leave" and the manager offered no evidence that the company's investigation was not sound.

Mitchell H. Rubinstein

April 24, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 8, 2009

Sales rep unequivocally did not exercise FMLA rights

Righi v SMC Corp of Am, ___F.Supp.2d___(C.D. Ill.February 27, 2009), is an interesting case. The court held that a sales rep who emailed his supervisor requesting "a couple days off" to make arrangements for his mother, a diabetic who was hospitalized due to an insulin overdose, could not establish an FMLA interference or retaliation claim after his employer discharged him for violating the company's call-in policy because he never requested FMLA leave.
Significantly, in the email, the rep expressly stated that although he could apply for FMLA leave (referring to it as the "family care act"), he did not want to at this time. Instead, he asked for vacation time. Upon receipt of the email, the supervisor made several unsuccessful attempts to contact the rep, who admitted turning off his company-issued cell phone. Eight days later, when he finally made contact with his supervisor, the rep was fired. According to the company's attendance policy, failure to report to work for more than two consecutive days without notifying a supervisor is grounds for discharge, and the rep's email said he would be gone for only "a couple of days."
While the rep alleged that his email referencing the FMLA was sufficient to put his employer on notice that his absence was covered by the Act, the court disagreed. Additionally, the employer was not required to ignore the rep's unequivocal statement that he was not interested in applying for FMLA leave.

This is a harsh decision and demonstrates how important a knowledge of FMLA rights are.

Mitchell H. Rubinstein

April 8, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 1, 2009

Pre-judgment interest on FMLA damages is mandatory

4thcir In Dotson v Pfizer, Inc, ___F.3d___(4th Cir.  March 4, 2009), the court reversed a district court's denial of pre-judgment interest in an FMLA interference and retaliation case, in which a drug company terminated an employee shortly after he and his wife returned from Russia with a newly adopted child. The jury had found that the drug company interfered with the employee's rights to FMLA leave and awarded him $1,876 on his claim of interference and $331,429 on his retaliation claim. Although the company contended that his pre-adoption absences fell outside the FMLA because they were taken intermittently without company consent, evidence showed the employee kept the company informed about his need for the absences, which included two separate trips to Russia.
Given the statutory stipulation that pre-judgment interest on FMLA damages is mandatory rather than discretionary, the appellate court reversed the decision, which in turn, required that it vacate an award of liquidated damages to be recalculated, taking into account the pre-judgment interest.

April 1, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 17, 2009

Excellent NYLJ article on FMLA Regulations

New Regulations Change in Face of Family Medical Leave Act (registration required) is an excellent Feb. 26, 2009 New York Law Journal article about the recent amendments to the FMLA. It outlines the changes applicable to service men and women as well as the changes to employees. As the article states:

To date, a serious health condition has been defined as one where an employee experiences three or more days of incapacitation and makes two or more visits to a health-care provider, with no time frame placed on when such visits must occur.

The new regulations require that the two visits must occur within 30 days of the beginning of the period of incapacity, and the first must occur within a week of the start of the incapacity period.

Finally, the new rule states that the required "periodic visits" to a health-care provider for chronic health conditions must involve at least two visits per year. (Periodic visits are not defined in the current regulations.)

Although the effect of the change on employees is unknown, concerns about its impact center on employees who live in rural areas and who do not have ready access to a physician. In these situations, it may be difficult for the employee to schedule and attend a second physician visit within 30 days of the first one.

Also, depending on the employee's condition, a physician may deem such a follow up distance in this time period to be unnecessary, thus forcing the employee to travel a long distance for an unneeded physician's visit for no reason other than to satisfy the requirements of the new rule.

Mitchell H. Rubinstein

March 17, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Sunday, March 8, 2009

FMLA claim dismissed despite employee arguing that his leave was provisionally approved

8thcir Reed v Lear Corp, __F.3d___ (8th Cir. February 12, 2009), is an interesting FMLA case.The court held that a plaintiff that alleged overheard an HR manager state that his leave request was "provisionally" approved did not act reasonably by relying on the manager's representation, nor did his employer violate the FMLA when it discharged him for excessive absenteeism pursuant to its no-fault attendance policy. The court also rejected plaintiff's equitable estoppel claim. This doctrine states that "'a party who makes a representation that misleads another person, who then reasonably relies on that representation to his detriment, may not deny the representation.'" In this case, however, the employer informed the worker at least three times that he needed to submit a medical certification form attesting to his inability to work, which he failed to do. The court characterized plaintiff's reaction to the HR manager statement as  "seizing upon a remark" he overheard by an HR manager who did not even handle individual requests for FMLA leave. "Estoppel is too exceptional a remedy for such an undistinguished claim."

Mitchell H. Rubinstein

March 8, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Thursday, February 26, 2009

Federal District Ct Holds FMLA protects ineligible employee's request for future leave when employee is eligible

 

Reynolds v Inter-Industry Conf. on Auto Collision Repair, ___F.Supp. 2d___(N.D. Ill. January 14, 2009), is an unusual FMLA case. The court held that an employee who informed his employer that he needed to take FMLA leave in three months, once the mother of his premature infant returned to work after exhausting her own FMLA leave during their newborn's stay in the NICU unit, stated a claim for FMLA retaliation based on his discharge soon after making his leave request. Significantly, the plaintiff  had not yet worked for twelve months and was not FMLA-eligible at the time he made the request; however, he would be eligible by the time his requested leave was to ensue.

In a case of first impression, the court reasoned that the FMLA clearly contemplates the scenario in which an employee requests leave beginning on a foreseeable future date.  Moreover, the implementing regulations are consistent with this reading; the rules clearly prohibit the firing of an ineligible employee for his intention to take leave once eligible.

Mitchell H. Rubinstein

February 26, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Sunday, February 22, 2009

Attorneys Failure To Research FMLA Leads To Liquidated Damages

Judge: In House Attorney's Failure to Research FMLA Shows Lack of Good Faith is an interesting Jan. 30, 2009 law.com article. It is about Brown v. Nutrition Management Services Co.,  a federal district court case where an attorneys failure to research the FMLA lead to an award of liquidated damages. As the article states:

A federal judge has doubled a jury's verdict in a Family and Medical Leave Act case after finding that an in-house lawyer's failure to research whether a pregnant worker was covered by the FMLA was evidence of the company's lack of good faith.

  In Brown v. Nutrition Management Services Co., a jury awarded plaintiff Melissa Brown $74,000 in back pay.

Now Senior U.S. District Judge Norma L. Shapiro has added more than $6,600 in interest to the verdict and then doubled that figure, for a total judgment of $161,311. In a second opinion, Shapiro awarded more than $145,000 in fees to attorney Eliot B. Platt.

Shapiro found that under the FMLA, courts must award liquidated damages -- effectively doubling the jury's verdict -- unless the defendant can show it acted in good faith.

  But in Nutrition Management's case, Shapiro said, there was no evidence of good faith because the company never researched the question of whether the plaintiff was covered under the law.

Mitchell H. Rubinstein

February 22, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Thursday, February 5, 2009

Union Release Time Counts Towards FMLA Min. Hour Requirements

Maples v. Illinois Bell, ___F.Supp. 2d ___, 2009 U.S. Dist. Lexis 3156 (N.D. Ill. Jan. 14, 2009), is an extremely important FMLA and labor relations case. Many unions bargain for release time for their stewards an officers. Query, does that time count towards the 1250 min. hour coverage requirement under the FMLA? Yes, holds this court notwithstanding the fact that the union, yes the union and not the employer, pays for this release time.
This decision is complicated, but well written. Basically, the court looked to the FLSA for guidance and largely relied on 29 CFR 785.42 which is a DOL regulation which provides that time spent adjusting grievances is considered hours worked.    

Mitchell H. Rubinstein

February 5, 2009 in FMLA | Permalink | Comments (1) | TrackBack (0)