Employees Must Ask For Leave to be Entitled to FMLA Rights

leave fmla rights time off Alabama Employment Law
Generally, an employee must request leave of some kind before an employer is required to provide notice of FMLA rights.

The Family and Medical Leave Act imposes duties on employers to actively engage with employees who need FMLA benefits.  In fact, employers must provide an employee with notice of their FMLA rights whenever the employer “acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason.” 29 C.F.R. § 825.300(b)(1).  Last week, the Eleventh Circuit Court of Appeals clarified employers’ obligations, finding that the duty to provide notice of FMLA rights only arises if an employee asks for leave of some kind.  Graves v. Brandstar, Inc., No. 21-13469, 2023 WL 3316741 (11th Cir. May 9, 2021).

Jessica Graves lived in Florida and her father lived in Pennsylvania.  After Ms. Graves’s father underwent emergency brain surgery, she asked her employer for “ongoing flexibility” to prepare her home as she moved him to Florida.  But, she never asked for time-off to prepare her home.  Ms. Graves’s employer never provided notice of her rights under the FMLA and later terminated her employment under circumstances that were potentially linked to her care for her father.

Ms. Graves sued and claimed her employer violated the FMLA by failing to provide her with notice of her right to FMLA leave.  But, the Eleventh Circuit found that an employer has no obligation to provide notice of FMLA rights unless the employee asks for leave of some sort.  Graves, 2023 WL 3316741 at *4.  “The Family and Medical Leave Act requires, at the very least, that an employee actually seek leave—of some sort—to trigger an employer’s obligation to give eligibility and rights-and-responsibilities notice.”  Id. (emphasis in original).  Put another way, “the employee must ask for time off—i.e., leave—in order to prompt the employer’s notice obligations.”  Id.   In this case, Ms. Graves never asked for time off from work.  Therefore, the Court found no violation of the FMLA.

There is one crucial wrinkle to the Graves decision.  The Court suggested that an employer cannot rely upon an employee’s failure to request leave if it acquires knowledge of the employee’s need for leave in some other manner.  But, in the Graves case, the employer had no such knowledge.

My general suggestion to employers is: whenever there’s a question about whether an employee needs FMLA leave, just give them the standard FMLA notices.  I would be cautious about limiting distribution of FMLA materials based upon an employee’s failure to expressly request “leave.”  But, the Graves case provides an additional potential defense to employers who fail to give FMLA notices to their employees.

Employees on Workers’ Compensation Must Be Notified of FMLA Rights

notice FMLA workers' compensation Alabama Employment Law
Employers should give notice of FMLA rights to employees who are injured on the job.

Most employers purchase workers’ compensation insurance to provide payment and benefits for employees who are injured on-the-job.  Usually, the workers’ compensation insurance carrier handles all aspects of the claim and employers are happy to let them do so.  But, employers need to know that workers’ compensation frequently overlaps with the Family and Medical Leave Act.  And, workers’ compensation insurance companies have little motivation (and no obligation) to notify injured employees of their FMLA rights.  A recent case from the Eleventh Circuit Court of Appeals shows the danger to employers if they fail to notify injured employees of their FMLA rights.  See Ramji v. Hospital Housekeeping Sys., LLC, No. 19-13461, 2021 WL 1257247 (11th Cir. Apr. 6, 2021).

Noorjhan Ramji suffered a trip-and-fall while working on September 15, 2016.  She took eleven days off work during which her workers’ compensation physician found that she could perform light-duty work. After that finding, Ramji’s employer offered her a light-duty position, which she accepted.  Ramji continued to receive treatment and physical therapy.  On October 21, 2016, the workers’ compensation physician found that she could return to full-duty.  But, Ramji’s employer also required that she successfully pass an “essential functions” test, which appears to have been administered by her supervisors.  That test required Ramji to complete twenty tasks assessing her ability to grip, bend, lift, twist, climb and push.  When she failed five of those tasks, Ramji was fired.

A trial court entered summary judgment dismissing Ramji’s FMLA claims.  The court reasoned that the employer could not have been expected to offer FMLA rights to Ramji, because she was released to full-duty.  The Eleventh Circuit Court of Appeals disagreed and vacated the dismissal.  There are several important aspects of that decision.

  1. Ramji’s formal workers’ compensation claim  was sufficient to notify the employer that she might be protected by the FMLA.  “That claim included information about the nature of Ramji’s knee injury, the need for emergency medical and follow-up treatment, and a release excusing Ramji from three days of work.”
  2. The information in the workers’ compensation claim “activated [the employer’s] duty to provide Ramji with FMLA notice within five business day ….”  And, the Court found a failure to provide notice could be an interference with Ramji’s FMLA rights.
  3. The employer argued that Ramji’s acceptance of a light-duty position relieved it of the duty to notify her of FMLA rights.  Yet, the Eleventh Circuit found that Ramji was entitled to choose between a paid light-duty job and an unpaid period of FMLA leave.  “But Ramji never had the opportunity to decide between taking a light-duty position or taking unpaid FMLA leave.  [The employer] made that choice for her by offering only a light-duty assignment.”  The failure to provide the choice was also a potential interference with FMLA rights.
  4. The Court seemed to accept Ramji’s argument “that the FMLA notice provisions exist to ensure that employees ‘make informed decisions about leave.'”

Ultimately, the Eleventh Circuit decided that a jury should decide whether Ramji’s employer violated the FMLA.  Few employers want to place their fates in the hands of jury.  That fate, however, might have been avoided if the employer simply gave Ramji notice of her right to take twelve weeks of unpaid FMLA leave.

The lesson of the Ramji case is simple:  In most cases, employers should give notice of FMLA rights to employees who are injured on-the-job.  If an employer fails to provide notice, the consequences can be significant.

Update: Can an Employee Refuse FMLA Leave?

DOL Wage and Hour refuse FMLA leave Alabama Employment Law
The Department of Labor has found that employees cannot refuse to take FMLA leave.

By now, most employers know that they have to provide leave under the Family and Medical Leave Act to qualifying employees if that employer has 50 or more employees within a 75-mile radius.  Occasionally, one of my clients will encounter an employee who doesn’t want FMLA leave.  In most cases, the employee wants to refuse FMLA leave initially, use-up all of his/her paid leave first, and then use 12-weeks of unpaid FMLA leave.

The Ninth Circuit Court of Appeals (which issues opinions for many states on the West Coast) allows employees to expressly decline FMLA coverage. See Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014).  The Escriba opinion is not binding on employers in Alabama.  Only the Eleventh Circuit Court of Appeals can give us definitive guidance.  But, the Eleventh Circuit has not issued an opinion on this issue.

In my opinion, the FMLA’s implementing regulations provide an employer with very little choice on whether employees can refuse FMLA leave.  If the employer possesses information demonstrating that an employee suffers from a “serious health condition,” then the employer must designate the leave as FMLA leave — regardless of what the employee wants.  Indeed, the regulations state:  “Once the employer has acquired knowledge that the leave is being taken for a FMLA-qualifying reason, the employer must notify the employee [that the leave is designated as FMLA leave.]”  29 C.F.R. § 825.301(a).  Here is a good blog post discussing the pros and cons of designating leave as FMLA leave over an employee’s objection: Forcing FMLA.

Last week, the United States Department of Labor’s Wage and Hour Division weighed-in on this issue.  In Opinion Letter FMLA2019-1-A, the Wage and Hour Division expressly found:  “Once an eligible employee communicates a need to take leave for an FMLA qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.”  (DOL Opinion FMLA 2019-1-A at 2.)  Thus, “the employer may not delay designating leave as FMLA-qualifying leave, even if the employee would prefer that the employer delay the designation.”  (Id.)  The DOL’s opinion also expressly disagrees with the Ninth Circuit’s holding in Escriba.

The issue of declining FMLA leave or forcing FMLA leave is a complex one.  In fact, the Eleventh Circuit has left open the possibility that an employee might be able to sue for “involuntary leave.”  While the Court has not issued a specific opinion on that issue, it has recognized that an employee might be able to sue if he/she is forced to use 12 weeks of FMLA leave and then does not have leave available for a later qualifying condition.  As a result, Alabama employers should proceed cautiously before forcing an employee to take FMLA leave.

FMLA: Employees Without 1,250 Hours Can Still Be Protected

1,250 hours FMLA pre-eligibility Alabama Employment Law
Some employees are entitled to protection under the FMLA before working 1,250 hours.

Most employers subject to the Family and Medical Leave Act (“FMLA”) know that an employee must work at least 1,250 hours in the previous 12 months to be eligible for 12 weeks of unpaid leave.   In addition to leave, the FMLA provides employees with other protections, like the right to be reinstated at the completion of leave, the right not to have their FMLA benefits interfered with by their employer, and the right to be free from retaliation for using the FMLA.

Many employers think that an employee possesses no rights under the FMLA unless they satisfy the 1,250 hour requirement.  That is a mistaken and dangerous belief.  Even before working 1,250 hours, an employee’s right to be free from FMLA interference can be implicated.  For example, some employees become pregnant before satisfying the 1,250 hour requirement, but they will give birth and need FMLA leave after completing 1,250 hours.  An employer who terminates an employee in order to avoid future FMLA obligations violates the FMLA even if the employee has not worked 1,250 hours.

The first Eleventh Circuit case to discuss this issue was Pereda v. Brookdale Senior Living Communities, 666 F.3d 1269 (11th Cir. 2012).  In June of 2009, Kathryn Pereda notified her employer that she was pregnant and would be requesting FMLA leave after the birth of her child on or about November 30, 2009.  Pereda was terminated from employment in September of 2009.  It was “undisputed that Pereda, at the time she requested leave, was not eligible for FMLA protection because she had not worked the requisite hours and had not yet experienced a triggering event, the birth of her child.”  Pereda, 666 F.3d at 1272.  Nevertheless, the Court found that Pereda was entitled to FMLA protection:  “Without protecting against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible.  Such a situation is contrary to the basic concept of the FMLA.”  Id. at 1273.  In short, the Court held that Pereda could sue for FMLA interference and retaliation — even though she had not worked 1,250 hours before she requested leave.

Employers contemplating termination or discipline of an employee who is pregnant or suffering from a serious health condition should proceed very cautiously.  Employers must consider not only whether the employee is currently eligible for FMLA leave, but also whether the employee will be eligible in the future.  Without taking all facts into consideration, employers risk an inadvertent violation of the FMLA.

From Small Things, Big Things One Day Come

Springsteen small things errors big Alabama Employment Law
Small errors can have big consequences for employers.

I confess:  I’m a big Bruce Springsteen fan.  One of his more obscure songs is “From Small Things (Big Things One Day Come).”  The song itself has absolutely nothing to do with employment law, but I thought of the title when I read the Eleventh Circuit’s recent opinion in Jones v. Aaron’s Inc., No. 17-14298, 2018 WL 4203459 (Sep. 4, 2018).  The Jones case demonstrates that small errors in dealing with employees can have big consequences for employers.

Rosana Jones was a Customer Service Representative for Aaron’s, Inc.  She injured her back and took FMLA leave from June 2, 2013 to June 17, 2013.  Prior to her injury and FMLA leave, Jones worked 40 hours per week, but upon return her hours were reduced to 32 hours per week.  After two weeks working that reduced schedule, Jones complained to her supervisor, who returned her to 40 hours per week.  But, Aaron’s did not pay Jones for the 16 hours of missed work.

In October 2013, a new manager was assigned to Ms. Jones’s store, and she clearly had personality conflicts with that manager.  Those conflicts culminated in an event where Jones told the manager:  “Christ, just be a man.  Tell me what your problem is with me.”  Based upon that statement and other conflicts, Aaron’s terminated Ms. Jones’s employment.

Ms. Jones sued Aaron’s under the Americans with Disabilities Act and the Family and Medical Leave Act.  She focused on:  (1) the termination of her employment; and, (2) the loss of 16 work hours when she returned from FMLA leave.  A trial court dismissed both of those claims, but the Eleventh Circuit entered a limited reversal.

The Eleventh Circuit found that termination was appropriate, but reversed on the 16-hour issue. Aaron’s claimed that Ms. Jones requested a reduction of hours when she returned from FMLA leave, but Ms. Jones denied any such request.  Indeed, there was no documentation of any kind indicating such a request.  Instead, viewing the evidence most favorably for Ms. Jones, it appeared that Aaron’s management implemented the reduction of hours.

After Ms. Jones filed her lawsuit, Aaron’s paid her for the sixteen hours.  While the dollar amount is not mentioned in the Jones opinion, I suspect that the payment was only a few hundred dollars — at most.  After making that payment, Aaron’s essentially argued “no harm, no foul.”  But, the Eleventh Circuit was not persuaded:  “Employers cannot escape liability for adverse employment decisions by making retroactive payments to aggrieved employees. …. Moreover, Aaron’s late payment to Jones does not alter the fact that Jones was denied payment because of an FMLA violation, nor does it erase the injury caused by this alleged FMLA violation — specifically the lost value and use of the funds in the three years before she received payment.”

For Aaron’s, the practical impact of its small error will probably result in a much larger financial result.  The Eleventh Circuit’s opinion clears the way for a jury trial on the FMLA violation.  Most likely, the parties will settle that claim before trial.  And, the primary beneficiary of any settlement will be Ms. Jones’s lawyers.  The value of Ms. Jones’s FMLA claim for 16 hours is very low.  But, her lawyers will certainly claim that they are entitled to thousands of dollars of in attorneys’ fees for successfully pursuing the claim.  As a result, an error of several hundred dollars by Aaron’s will probably cost them thousands of dollars to resolve.

For employers, the practical lesson from Jones is:  be willing to admit when you’ve made a mistake.  If Aaron’s paid Ms. Jones before she filed suit, or if Aaron’s paid her for “the lost value and use of the funds,” the result of the case might have been much different.  By waiting to correct a violation, however, Aaron’s small error potentially resulted in much larger financial consequence.

FMLA: Three Strategies for Curbing FMLA Abuse

FMLA abuse intermittent leave Alabama Employment Law
FMLA abuse can be difficult for employers. But, there are ways to limit that abuse.

In my experience, the majority of employees requesting leave under the Family and Medical Leave Act (“FMLA”) use their leave appropriately.  Nevertheless, there are still a significant number of employees who will use the FMLA as a source of vacation days, instead of a relief for family or medical problems.  Typically, these employees use “intermittent leave” under the FMLA.  The FMLA does not require that all leave for one condition to be taken at one time.  Instead, the act recognizes that some conditions “flare up” intermittently or or require multiple treatments over time.  Therefore, employees are entitled to take leave on those intermittent occasions.

Frequently, employees are granted FMLA leave for such intermittent conditions.  But, what happens if an employee’s “flare ups” always seem to occur on a Monday or Friday?  What can an employer do to ensure that employees aren’t getting a consequence-free day-off when they aren’t really sick?  This is an exceedingly difficult area of the law, and I strongly urge all employers to talk with their lawyer before taking direct disciplinary action as a result of suspected FMLA abuse.  Also, if you suspect FMLA abuse, there are strategies to limit the abuse.

Ask for a Second Opinion.

Just because an employee’s hand-picked physician says there’s a need for intermittent leave, doesn’t automatically mean that the employee is entitled to leave.  Instead, if an employer has  a “reason to doubt” the validity of a medical certification, the employer may require the employee to obtain a second opinion.  The employer gets to select the second doctor, but must also pay for the second opinion.  The selected doctor cannot be one that the employer employs, contracts with or regularly uses.  In short, you can’t sent the employee to the “company doctor” for a second opinion.

If the second opinion disagrees with the the employee’s original opinion, then the employer and employee must work in good faith to select a third doctor, whose opinion will be final.

Use Certification Forms to Your Advantage.

FMLA certification forms are your friend.  Yes, they are unwieldy and confusing.  But, at the end of the day, those forms should tell you exactly what conditions qualify for the employee’s FMLA leave.  Here’s a link to the Department of Labor’s standard forms:  FMLA Forms.  If an employee takes FMLA, make sure their leave matches up with the form.  For example, if the employee’s certification says they will need intermittent leave for migraines, an absence for knee pain probably won’t qualify for FMLA leave.  Hold your employees accountable to the ground stated in their certification.

Ask for a Re-Certification. 

Generally, employers can request re-certification every 30 days, but the request for re-certification can  only be made in connection with an absence by the employee.  But, there is an exception to that general rule that frequently applies in intermittent leave cases.

If the original certification indicates that the minimum duration of the employee’s condition is more than 30 days, you must wait until the minimum duration expires before requesting re-certification.  But, there is also an exception-to-the-exception.  At a minimum, you are entitled to request a re-certification every 6 months in connection with an absence.

Finally, the FMLA permits employers to request re-certification at any time under certain conditions.  First, if the employee asks for an extension of the leave period (for example from three months to six months), a re-certification can be required.  Second, if the circumstances described by the original certification have changed significantly, a re-certification can be required.  There is much debate over whether a change is “significant,” so employers should proceed carefully with this exception.  Finally, if an employer receives information that casts doubt upon the employee’s stated reason for absence or the continuing validity of the certification, the a re-certification can be required.  The most common scenario of a “reason to doubt” occurs when the doctor’s certification says the employee will be in bed all-day during a “flare up,” but Facebook shows him playing golf.


These are just a few of the strategies that employers can use to combat FMLA abuse.    For further ideas, an experienced employment attorney can provide you with valuable guidance.

ADA: Extended Leave Is Not a Reasonable Accommodation



ADA leave of absence reasonable accommodation Alabama employment law
In the Eleventh and Seventh Circuits, an extended leave of absence is not a reasonable accommodation under the ADA.

Last week, the Eleventh Circuit found that an open-ended extension of leave without pay is not a reasonable accommodation under the Americans with Disabilities Act.  See Billups v. Emerald Coast Utilities Auth., No. 17-10391, 2017 WL 4857430 (11th Cir. Oct. 26, 2017).  Roderick Billups suffered an on-the-job injury on December 18, 2013 and he began FMLA leave on December 19, 2013.  The FMLA 12-week period expired on March 12, 2014, while Billups was still out on leave.  He underwent surgery on April 16, 2014 and on May 27, 2014 his physician restricted him to sedentary work.

In early June 2014, Billups’ employer, Emerald Coast, sent him a notice that he would likely be terminated because of his inability to perform the essential functions of his job with or without reasonable accommodation.  At a “hearing” on June 19, 2014, Billups provided some evidence that he might be cleared for duty by July 15, 2014.  Nevertheless, on June 23, 2014, Billups was terminated because of a continuing inability to perform the essential requirements of his job.  Billups continued medical treatment and was cleared to return to work without restrictions on October 23, 2014.

In January, I discussed another case from the Eleventh Circuit (Here) finding that a leave of absence is a reasonable accommodation only if it allows employees to “perform the essential functions of their jobs presently or in the immediate future.”  Because Billups received more than six months of leave before the termination decision, and could not return within the immediate future, the Court found that an extension was not a reasonable accommodation.

The Billups decision comes on the heels of a similar decision by the Seventh Circuit Court of Appeals, Severson v. Heartland Woodcraft, Inc., which is discussed here:  7th Circuit Rejects Leave as Accommodation.    The Severson decision is slightly more noteworthy, because it directly addresses a policy from the EEOC requiring it as a reasonable accommodation:  EEOC on ADA and Leave.  The Court reasoned “[i]f, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute-in effect, an open-ended extension of the FMLA.”

FMLA: Even a Mistaken Reason Is a Legal Reason for Termination

FMLA Mistake
FMLA: Even a mistaken reason for termination can be a permissible reason.

A recent case arising under the Family and Medical Leave Act (“FMLA”) reinforces the maxim that an employee can be fired for a good reason, a bad reason, or no reason at all — so long as the reason does not violate federal protections.  See Neal v. T-Mobile, USA, Inc., No 16-16304, 2017 WL 270354 (11th Cir. Jun. 22, 2017).  In Neal, Latasha Neal took FMLA leave and was scheduled to return to work with T-Mobile on December 31, 2012.  Even though she exhausted her FMLA leave, T-Mobile extended her leave period to January 10, 2013.   Then, Ms. Neal negotiated a further extension with her district manager, Carl Graden, so that she was scheduled to return to work on January 22, 2013.  When she failed to return to work on that date, T-Mobile notified Ms. Neal that she had to submit a release-to-return-to-work from her physician by January 25, 2013.  If she failed to submit the release within that time, she would be deemed to voluntarily terminate her employment.

On January 25, 2013, Carl Graden called T-Mobile’s leave of absence team, which told him that Ms. Neal failed to submit the release form.  So, Graden terminated Ms. Neal’s employment.  In reality, Ms. Neal submitted the form, but it was mis-filed.  So, Graden’s reason for termination was mistaken.  Ms. Neal sued for FMLA retaliation.

The Eleventh Circuit Court of Appeal found that Ms. Neal’s termination was not retaliatory.  In particular, the Court relied upon Graden’s testimony that he did not know that Ms. Neal had submitted the return-to-work form, even though other T-Mobile employees did know.  This is simply re-enforces a previous blog post where I mentioned that ignorance of a decision-maker can sometimes be a good thing in discrimination actions:  Ignorance Can Be A Good Excuse

In a “fair” world, Mr. Graden would change his mind upon learning of the mis-filed form, and re-hire Ms. Neal.  But, the FMLA and other federal laws are not necessarily concerned with “fairness.”  Instead, so long as an employer makes employment decisions that are not based upon protected characteristics (like FMLA leave), then even unfair terminations are legal.


FMLA: Waiver of Reinstatement Rights By Requesting More Leave

FMLA reinstatement waiver
Employees may be waiving their right to reinstatement by requesting more leave after the expiration of 12 weeks of FMLA leave.

Employees may be waiving their FMLA rights by requesting additional leave at the end of their statutorily-mandated 12-week period.  See Jones v. Gulf Coast Health Care of De., 854 F.3d 1261 (11th Cir. 2017).  Rodney Jones was an activities director at a nursing home who underwent rotator cuff surgery.  His employer had a policy requiring a fitness-for-duty certification before returning from FMLA leave.  When Mr. Jones was not medically cleared at the end of his FMLA 12-week period, he requested, and received, an additional 30 days of leave.  While on that extended leave, he visited Busch Gardens theme park twice, and vacationed in St. Martin.  Upon returning to work Mr. Jones was terminated because his employer believed he was well-enough to work at an earlier point.

The Jones case actually discusses several issues of significance for employers and employees under the FMLA.

Waiver of Rights by Requesting Additional Leave

Mr. Jones’s employer gave him an additional 30-days of leave, but “[s]ignificantly, this additional leave was not an extension of Jones’s FMLA leave.”  The Eleventh Circuit stopped just short of announcing a concrete rule on waiver.  Nevertheless, the Court is clearly learning towards such a rule:  “Relevant caselaw suggests that an employer does not interfere with an employee’s right to reinstatement if that employee is terminated after taking leave in a excess of the 12 weeks permitted by the FMLA.”  The Court found that “Jones likely waived his FMLA right to reinstatement by taking an additional 30 days of medical leave ….”  Nevertheless, the Court found other reasons to uphold the termination.

Fitness for Duty

“[A]n employee returning from FMLA leave who cannot perform the essential functions of his job due to a physical condition need not be reinstated or restored to another position.”  Moreover, an employer may lawfully condition reinstatement upon receipt of a fitness-for-duty certification from a physician.  But, the employer must have a uniformly-applied fitness-for-duty policy.

Mr. Jones argued that his employer did not have a uniformly applied policy, because it allowed other employees to return on light duty, but not him.  The Eleventh Circuit rejected that argument and placed significant limits on the ability of employees to compare themselves to others.  The Court found that comparator employees must be “similarly situated.”  And, the employees that Jones compared himself to were not similarly situated because they:  (1) held different jobs with different duties; and, (2) were recovering from different maladies.

Retaliation – Time Limits for Causation

While the Eleventh Circuit’s decision with regard to reinstatement significantly limits employees’ rights, another part of the Jones opinion helps employees asserting retaliation.  Jones claimed that his termination was not related to his vacations, but was retaliation for seeking FMLA leave.  A retaliation claim requires proof that termination was caused by a request for FMLA leave.  The most frequent way to prove causation is through temporal proximity — a short period of time between assertion of FMLA rights and retaliation.  In the Eleventh Circuit, a period of two or three months between assertion of rights and termination usually satisfies the temporal proximity requirement.

Before Jones, Eleventh Circuit courts were split on whether the time limits for causation begin at the beginning or at the end of the FMLA leave.  Remember, FMLA leave is essentially three months of leave.  In Mr. Jones’s case, he was fired four months after requesting FMLA leave, but only one month after the end of his FMLA leave.

The trial court found that Mr. Jones’s time began running from the beginning of his request for FMLA leave, and that a delay of four months for termination was too long to establish causation.  The Eleventh Circuit reversed that decision and established a new rule for retaliation claims:  temporal proximity “should be measured from the last day of an employee’s FMLA leave until the adverse action at issue occurs.”  Because only one month passed from the last day of Jones’s FMLA leave to his termination, the Court reversed dismissal of his retaliation claim.

In summary, Jones is a good news/bad news case for employers.  On the one hand, the Eleventh Circuit made it more difficult for employees to assert claims for interference with FMLA rights.  On the other hand, the Court made it easier to prevail on retaliation claims.

E-mail: Stating the Reasons for Termination Can Lead to Liability

e-mail employer litigation
E-mails stating the reasons for termination can come back to haunt employers in litigation.

Anything you say can, and will, be used against you in a court of law.  That familiar phrase comes from criminal law as part of a criminal suspect’s Miranda rights.  But, it applies equally well in employment discrimination cases.  Anything that an employer says about an employee can, and will, be used by the employee to prove discrimination.  Moreover, by putting it in an e-mail, the employer preserves the evidence for the employee’s benefit.

One employer learned that lesson the hard way in Stewart v. Wells Fargo Bank, N.A., No. 5:15-cv-00988-MHH (N.D. Ala. Mar. 14, 2017).  In Stewart, the employee was hired in 2012 and had a documented history of poor performance in 2012 and the first half of 2013.  She received a formal performance warning on June 26, 2013.  When she received that warning, she informed her supervisor that she was having health issues that needed to be resolved.  On July 9, 2013,  Wells Fargo granted FMLA leave to Stewart for neck surgery, and she returned to work on August 26, 2013.

On October 5, 2013, the supervisor sent an e-mail to Wells Fargo’s Human Resources Office recommending termination of Stewart’s employment.  While that e-mail detailed several performance issues, it also stated termination was justified because “Debby submits a request for medical leave.”

Those seven words were sufficient to submit the case to a jury.  The trial court found the statement sufficient to constitute “direct evidence” of discrimination.  Direct evidence is evidence that shows a direct correlation between a discriminatory or retaliatory attitude and the employment action complained of.  Once an employee submits direct evidence of discrimination, the employer’s asserted reasons for termination can only be decided by a jury.  Thus, the trial court in Stewart, refused to dismiss Stewart’s claims and allowed a jury to decide whether poor performance or FMLA leave was the real reason for termination.

Employers should take the Stewart case as a cautionary tale about the necessity of thoroughly training supervisors.  The facts in Stewart indicate that there were plenty of performance reasons for terminating the employee.  But, the supervisor went beyond those reasons and listed protected conduct as a reason for termination.  And, once that reason was listed, the employer was stuck with it.  Employers should carefully train their supervisors on permissible and impermissible grounds for termination, and further train them on the proper way to document poor performance.