On March 14, the Department of Labor issued an opinion letter to answer the following two questions about FMLA leave:  1) may an employer delay designating leave as FMLA covered, even if the leave is for a FMLA qualifying reason, to allow the employee to exhaust paid leave first;   2) may an employer expand an employee’s FMLA leave beyond the statutory 12 week entitlement.    In the DOL’s opinion, the answer to both questions is “no.”

The situation the opinion letter addresses is quite common: an employee wants to use available paid leave before starting the clock ticking on the 12 weeks of FMLA leave. By delaying the designation of the leave as FMLA covered until after the paid leave is exhausted, the employer has effectively granted the employee additional weeks of protected leave.

I have always thought the FMLA regulations on this point are fairly clear: the employer is required to designate FMLA qualifying leave as covered by FMLA; to the extent an employee has accrued paid time off, the employer can require it to run concurrently with FMLA. This rule is a great benefit to employers in managing employee leave by ensuring that the FMLA job protected leave lasts no longer than 12 weeks, regardless of how much paid time off the employee has accrued.

Despite the seeming clarity of the regulation, the DOL issued two prior opinion letters (in 1995 and 1996), that took the position that an employer had the right, but was not required, to designate FMLA qualifying leave as FMLA covered (so long as it did not deny employees their rights under FMLA).   The Department reasoned that this permissive approach was consistent with FMLA’s provision that allows employers to extend more leave than FMLA requires.   However, in the March 14 letter, the DOL emphasized that the designation of FMLA qualifying leave as covered leave is mandatory, and the maximum number of weeks of FMLA leave to which an employee is entitled in a year is 12 (or 26 is the case of military caregiver leave).  An employer remains free to grant leave beyond the 12 week requirement, but it cannot be considered FMLA leave.    The March 14 letter expressly withdrew these prior opinion letters.

DOL may have taken a more permissive approach in the past because the practice of allowing an employee to use paid leave before starting the FMLA clock typically causes no harm to the employee.  In fact, it is usually a great benefit to the employee who gets the extra leave.   From that perspective, it’s difficult to discern what harm the Department is trying to remedy with this new opinion.

The answer may be a 2014 ruling on this subject from the Ninth Circuit, Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1246, 1244 (9th Cir. 2014).    The plaintiff in that case, Maria Escriba, sought two weeks of leave to care for her ill father in Guatamala.    She informed her supervisors of the FMLA qualifying reason for the leave, but expressly requested the time be deemed as vacation leave, so she could save FMLA leave for future use.  When Escriba failed to return to work after two weeks, she was terminated.  Escriba filed suit, alleging her termination interfered with her FMLA rights.  She claimed, based upon the regulations, the employer was required to designate her leave as FMLA leave.  Escriba argued she was not allowed to waive her FMLA rights by electing to use vacation leave before FMLA leave commenced, despite the fact that is what she specifically requested.

On appeal, the Ninth Circuit rejected Escriba’s arguments, ruling that the two weeks of vacation leave she requested were not FMLA protected, even though she was on leave for an FMLA qualifying reason.   The court held that, “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”   Because Escriba’s two weeks of leave was not FMLA protected, the court concluded the employer did not interfere with her FMLA rights by terminating her employment.

Escriba was a win for that particular employer, but ironically was a loss for employers generally.    What was previously a employer granted discretionary benefit (allowing exhaustion of paid leave before starting the FMLA) was transformed into an employee right (entitlement to exhaust paid leave before starting FMLA).   Once the employee has the right to determine when the FMLA clock starts, the employee potentially gains the opportunity of extra leave beyond the 12 week statutory entitlement.   The employer’s ability to effectively manage FMLA leave, granted to it by regulation, was out the window.

The DOL specifically mentioned in footnote 3 of the March 14 letter its disagreement with the holding  Escriba.   While the Department’s opinion letter is not binding authority, courts often defer to the agency’s interpretation of the law.   Perhaps the Department issued this letter as part of an effort to confine to the Ninth Circuit the transformation of an employer managed benefit into an employee entitlement.

What is the takeaway for employers?   First, if you want to protect your prerogative to manage FMLA leave, then you need to exercise it by following the DOL’s guidance in the March 14 opinion letter; namely, you should always designate as FMLA covered leave any leave that is FMLA qualifying.   If the employee has available paid leave, the two can run concurrently.     If you want to be more generous,  make it clear that additional leave is available only after FMLA leave has been exhausted, and does not necessarily come with FMLA protected rights.   Second, it may help employers reinforce the rule to supervisors and HR personnel who may not recognize the employee does not have a choice in determining when the designation of FMLA covered leave occurs.    Finally, while there is no ironclad guarantee that other circuits will follow the DOL’s opinion letter, relying on a DOL Guidance supports an employer’s good faith defense it was trying to comply with the law, even if a court later finds the conduct to violate FMLA.

How much extra leave is reasonable for an employee who has exhausted FMLA but is not yet capable of returning to work? Does an employer have to keep the absent employee’s job open?  What medical evidence is needed?   How much interactive dialogue is enough?  What about an employee is who is unreasonable and/or demanding?

A recent opinion from the Eighth Circuit provides helpful guidance about these and other problems employers face when deciding whether extended medical leave is a reasonable accommodation for an employee with a serious medical condition who is not yet capable of returning to work. See Brunckhorst v. City of Oak Park Heights, (8th Cir. 2/4/2019).

Continue Reading Eighth Circuit Case Provides Guidance on How to Handle the Vexing Problem of Extended Medical Leave as a Reasonable Accommodation

Employee abuse of intermittent FMLA leave is a common employer complaint.   An example of intermittent leave is when an employee occasionally has to take off work because of an ongoing or chronic medical condition.    What happens if the employer suspects the employee uses FMLA covered leave to miss work for non-covered reasons, but does not know for sure?  What kind of evidence is needed to take action?

The U.S. Court of Appeals for the Third Circuit addressed that question in a recent decision.  (Capps v. Mondelez Global, LLC, (No. 15-3839, 1/30/2017).  Fredrick Capps worked for the company that makes Oreos and other Nabisco snacks.   He suffered from a condition known as avascular necrosis, which causes a loss of blood flow to the bones and tissues, resulting is the death of those cells.   In Capps’ case, he developed arthritis in his hips and frequently experienced severe pain in the pelvic region, hips, and thighs, sometimes lasting for days at a time.   Capps’ doctor certified he needed full bed rest to recover from these periodic pain episodes, and thus recommended he be completely off work when they occurred.  The company granted him the intermittent leave he requested.

One Thursday, February 14, 2013, Capps was scheduled to start work at 1:00 p.m., but called in and said he would be late to work because of leg pain.  He called later in the day stating that he was taking a full day off because the pain had not subsided.  That same evening, about 6:30 p.m., Capps went to a local pub to get dinner because his wife was out of town and he “didn’t know how to cook.”   It so happened some his friend were there, and he ended up staying for 2 ½ hours.   Naturally, he had a few beers…and then a few shots.   Unfortunately for Capps, a few too many.  The police stopped him on the way home.  His blood alcohol concentration was more than four times the legal limit.   Capps was arrested and put in jail that night, but released the next morning, February 15, 2013.   He was scheduled to start work at 1:00 p.m. that day, but called in again, stating that he would be using FMLA leave because of his ongoing leg pain.

By the following Monday, everything was back to normal; Capps reported to work as ususal.  He did not report his arrest to the company, nor was he required to do so.    He later plead guilty to DUI and was sentenced to three days in jail, which he served in August 2013.

Almost one year after the arrest, in early 2014, an HR Manager at the company learned from a newspaper article about Capp’s DUI conviction and jail sentence.   He decided to investigate Capps’ attendance record to determine if he had been absent during the time frame of the arrest and conviction.

The HR Manager reviewed the criminal court docket to try and determine the dates Capps’ had court dates, and compared them to dates he used FMLA leave.   The HR Manager was not an attorney and did not understand the meaning of all the docket entries.  But, he concluded Capps had used FMLA leave on the date of his arrest and the day after, as well as two dates he appeared in court.    When confronted with this information, Capps denied he had improperly used FMLA leave.  Capps later produced a undated notes from his doctor stating that he had taken time off on the days in question because of hip and leg pain.  Capps claimed he waived his right to appear in court on the dates the docket showed he had court dates, because he was actually at home suffering from pain flare ups.   The company was suspicious about the authenticity of the doctor’s letters.  The employer terminated Capps for FMLA abuse and dishonesty in reporting about his FMLA leave, all of which violated company policy.

2846903064_6077c22df2_zCapps sued for FMLA interference and retaliation, as well as failure to accommodate a disability under the ADA.    One of the key issues in the case was whether the employer had enough evidence to terminate in light of Capps’ claim there was a medical need for using leave on the dates in question, and his denial he appeared in court on the dates the docket showed he had court dates.    Noting that FMLA retaliation requires proof of the employer’s retaliatory intent, the court found that the employer’s honest belief the employee was misusing FMLA leave was a legitimate, non-retaliatory justification for the discharge.   Even if the employer was wrong in its belief, so long as it was honest, it is enough to defeat the claim.   In this case, Capps did not have enough evidence to show the company’s belief about his FMLA abuse was not an honest belief, and so his claim was dismissed.

The Capps case is a good reminder that absolute certainty the employee is abusing FMLA is not required before taking action.    It is also important to remember, however, that simply having a hunch or subjective belief abuse is occurring is not good enough to prove the belief was honest.    Rather, the employer should rely upon facts:  facts to support your belief, but also facts indicating the employee’s position is not believable.    In this case, it was enough that the HR Manager relied on the court docket showing when Capps was supposed to be in court, and that the employee produced a doctor’s note that was suspicious because it was undated and contained information that normally wouldn’t be expected from a doctor.

Image Credits: from Google, Creative Commons license, Oreo Two Cookies; Honesty is the Best Policy, Rick Harrison

FMLA provides a qualifying employee up twelve weeks of job protected leave. That means the employee is entitled to return to the same position held before the leave, or to an “equivalent position” with equivalent pay, benefits, and other terms and conditions.   FMLA does not require an employer to restore employment if the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition.   But, as the recent case of Dollar v. Smithway Motor Express,Inc. (8th Cir. 3/27/13) demonstrates, and employers should tread with caution when deciding whether to terminate an employee on FMLA leave in these circumstances.

Christine Dollar was on FMLA leave from her job as a driver manager because of depression and anxiety.   She went on leave June 10, and was excused from work until July 9.   In the middle of the leave, approximately June 13 or 14, Smithway told Dollar she could not return to the driver manager position because of her poor attendance before she went on FMLA leave (much of which was apparently related to the depression). If she returned to Smithway, she was told her new position would be as a driver recruiter.    But, on June 21, Smithway told Dollar it needed to fill the driver recruiter position and could not guarantee that position would be available unless she returned to work immediately.   Because her psychiatrist recommended she be off work until July 9, Dollar did not return immediately.   Smithway terminated Dollar on July 6.  

At trial, Smithway’s defense to the FMLA interference claim was that Dollar’s depression made her unqualified to serve as a driver manager (Notably, Dollar agreed she was not qualified to return to the driver manager job). But, she claimed she should have been returned to the driver recruiter position upon returning from leave. Smithway contended it was not required to hold open the driver recruiter position until Dollar returned to work because FMLA imposes no duty to accommodate an employee by holding open an equivalent position. 

The Court skirted the issue whether Smithway was required to hold open the driver recruiter position, and instead found Dollar had already been transferred to the recruiter position at the time of her termination. Therefore, she had the right to “return” to that job (even though it was not a job she had actually performed) upon returning from leave.  

The Dollar case shows once again that bad facts can allow an employee to prevail even when the law is technically on the employer’s side.    Any time an employer is considering termination of an employee while she is on FMLA leave, the case should be thoroughly vetted with counsel in advance.   

Under the FMLA, liquidated damages are a form of “extra” damage a court may award over and above other damages an employee is awarded.   The employer can avoid liquidated damages, however, if it proves the FMLA violation was in good faith, that is, the employer reasonably believed its action did not violate the FMLA.

Marez v. Saint Gobain Containers (8th Cir., 7/31/12), shows that a decision maker’s good faith is not enough to avoid liquidated damages if the plaintiff relies upon the “cat’s paw” theory to prove liability.  Cat’s paw in employment discrimination means an employer can be liable for discrimination even if the decision maker was not biased. It applies if there is evidence a non-decision maker acted with a discriminatory motive and caused the adverse employment action. The most common example is when the decision maker relies upon information or advice given by a biased non-decision maker. 

Marez worked as a production supervisor at Saint Gobain plant that made glass beer bottles.   On January 28, 2008, Marez notified her supervisor that she would require FMLA leave for her husband’s upcoming surgery; Marez did not know the exact date of the surgery but said it would be “soon.” Marez did not notify anyone else at the company about her leave request, nor did her supervisor.   Notably, Marez had been on FMLA leave the previous July and August for several weeks, and there was evidence her supervisor was irritated about her lack of availability during that time. 

Two days later, on January 30, Marez was terminated.   One of the reasons given for the termination was that Marez had falsified paperwork. Specifically, she had reported on a check sheet that a piece of equipment was functioning when in fact it was “flatlining”, or not reporting data.   Marez claimed it was an error and not a deliberate omission. Marez’s supervisor was the one who discovered the paper work was wrong. The supervisor assembled and presented the information about Plaintiff’s paperwork to another member of management. They consulted with the plant manager, and the three of them together made the decision to terminate Plaintiff. 

The jury awarded the plaintiff damages of $206,500 for a FMLA violation, and the court added an additional $206,500 as liquidated damages.   On appeal, Saint Gobain claimed that the trial court should not have awarded liquidated damages because two of the decision makers, the plant manager and another member of the management team, did not know about Plaintiff’s FMLA request at the time of the termination, and therefore reasonably believed Plaintiff’s termination would not violate the FMLA.   In other words, even though Marez could rely upon a “cat’s paw” theory to establish liability under FMLA, Saint Gobain argued it should be not used as a basis for awarding liquidated damages. The Court rejected that argument:

Were we to accept the proposition that the cat’s paw theory applies to determining liability and lost wages but not to liquidated damages, that would have the result of treating less favorably for purposes of damages calculations plaintiffs who utilize the cat’s paw theory than those who do not. We see no basis in the statute for such a result.

The result in Marez is not surprising, given the tendency of courts to extend the cat’s paw theory to all of the laws that govern the employment relationship.    This case should reinforce the importance of thorough investigations of the facts and circumstances before termination decisions are made. That includes getting the employee’s side of the story and whenever possible have a disinterested person investigate the facts. 

On the Friday before Thanksgiving, Vice-President Biden announced at a Middle Class Task Force event the creation of a collaboration between the U.S. Department of Labor and the American Bar Association.   According to the press release associated with the event, the purpose the collaboration is to “help workers resolve complaints received by DOL’s wage and hour division.

Beginning December 13, 2010, people with unresolved complaints under the Fair Labor Standards Act (FLSA) or Family and Medical Leave Act (FMLA) will be sent a letter explaining their rights, and providing a toll-fee number that will connect them with an ABA approved lawyer referral service in their area. These are complaints that the Department of Labor is otherwise charged with investigating but apparently cannot because of what the Secretary of Labor described as the Department’s “limited capacity.”

While this collaboration may be good for the business of lawyers, it is doubtful it will be good for anyone else, most especially the business community and the middle class employees the program purports to help.   The unspoken assumption of programs like this one is that lots of employers are violating employment laws and short changing their employees.   Indeed, Labor Secretary Solis’ statement that “our nation’s workers deserve full and fair compensation” implies that they are not.  

Contrary to the assumptions underlying this program, in my experience and that of other employer side lawyers I know, the lion’s share of companies are conscientious about complying with the employment laws. The high cost of defending employee claims and the risk of an adverse outcome, regardless of the merits of the suit, give employers an economic incentive to comply with the law.   Nor is the federal government and the ABA encouraging more employment litigation likely increase the income of middle class employees. In fact, it may have the opposite result, as more and more resources are devoted to defending and settling these cases rather than increasing wages and benefits of employees generally.    In a 2008 study by Estreicher and Yost, the median gross settlement in 179 collective or class action employment lawsuits studied was $8,500,000.   This does not include the thousands of individual claims and settlements every year. 

Remarkably, the ABA touts this program as an opportunity to improve the image of lawyers. I don’t know who the ABA thinks this will impress, but it is not likely to be the business community or the majority of the general public who are cynical about lawyers.  If the Department of Labor believes employer compliance with FLSA and FMLA is lacking, there are more constructive ways to address the problem than increasing their litigation risk.

For a thoughtful view on the other side of this issue, see Dan Schwartz’s post at the Connecticut Employment Law Blog.

Thanks to Molly DiBianca of the Delaware Employment Law Blog for including us in the 2009 list of Top Employment Law Blogs.  One of the things I have most enjoyed since launching this blog last April is the collegiality among bloggers and the willingness to share ideas and information. 

Always a good source of practical information, the HR Daily Advisor had two posts this week  dealing with employee’s abuse of FMLA leave.   The first addressed the abuse of intermittent leave, and the second tackled the problem of "pattern absences" (such as taking leave on Mondays or Fridays). 

Jon Hyman at Ohio Employer’s Law Blog discusses an interview with Phillies’ starter Cole Hamels after game 3 of the World Series.   Media reports of the interview contained a quote from Hamels that made it appear he had given up on the Series after his poor game 3 performance.   When considered in the context of the entire interview, however, it was clear Hamels was looking forward to the opportunity to redeem himself in game 7 (alas, a game which never was played).    The lesson for employers: be careful what you say and how you say it, because it is easy to take words out of context, especially for cross-examining lawyers. 

Megan Erickson of the Social Networking Law Blog has two recent posts (here and here) on factors employers should consider before drafting a social networking policy.   With the explosion in social networking over the past year, this has become a hot topic for employers.   See our related posts on this subject here and here.

H1N1 seems to have subsided among school age children in the local area, but now is hitting more adults.   The Washington D.C. Employment Law Update reports that two members of the House of Representatives have introduced a bill that would permit employees five paid sick days if they contract H1N1.  The Emergency Influenza Containment Act would apply to employers with fifteen or more employees.  It would permit both full and part time employees to be paid if sent home by their employer because of the flu. 

Finally, are employers under siege by the EEOC?  This post on Workplace Prof Blog reports on a human resources meeting in Detroit where many attendees reported facing EEOC charges for the first time.   The EEOC denies it is cracking down.   However, there is little doubt that charge statistics are up, and the EEOC’s own press releases report the filing of substantially more lawsuits now as compared to one year ago. 

The EEOC has revised its "Equal Employment Opportunity is the Law" poster.    The poster was revised to reflect new federal employment laws, including the ADA Amendments, and the Genetic Non Discrimination in Employment Act ("GINA").  Employers can either obtain a new poster, or a supplement their existing poster.   The new posting is mandatory effective November 21, 2009.  Up to ten posters can be obtained from the EEOC free of charge, or can be printed from the EEOC’s website.

The FMLA Blog reports on amendments to the FMLA the president signed this week.   Among the changes: military care giver leave will now apply to for veterans of the Armed Forces under certain circumstances.  In addition, Qualifying Exigency Leave is expanded to cover members of the regular military who are deployed to a foreign county.  Under existing law, such leave applied only for covered military members in the Reserves or Guard.

The best way to avoid workplace problems–avoid bad hires in the first place.  Two posts this week on HR Daily Advisor (here and here) identify five steps for gathering critical background information about prospective employees without breaking the bank, and while respecting the privacy rights of the applicant. 

A woman in Missouri sued Wal-Mart and other establishments under the ADA for denying access to her Bonnet Macaque monkey.   The Plaintiff claimed the monkey was trained to assist her with anxiety and agoraphobia, and she could not function in public unless the monkey was with her. The U.S. District Court in the Western District of Missouri granted summary judgment  to the defendants, finding that Plaintiff was not disabled, nor was her monkey a "service animal" under the ADA for which the establishments were required to provide reasonable accommodation.

This Bud’s for you.  A former Chief of Communications at Anheuser-Busch (now Anheuser Busch in Bev)  filed a lawsuit against the company for gender discrimination.   The former executive claims the company maintains gender bias in pay and promotions, excludes women from social networks, and promotes few women to top jobs and committee posts.   Most shocking to any viewer of beer commercials is this allegation:  that the company fostered a locker room and frat party atmosphere in the workplace.  


An update on H1N1–the confirmed number of cases in Iowa is now 60, and perhaps growing.   That is up 17 cases since our last post on this subject two days ago.   In addition to the existing public health and employer challenges this disease presents, will a potential pandemic provide the impetus for Congress to mandate paid leave for employees? 

There are reports that Senator Edward Kennedy (D., Mass.) plans to reintroduce next month the "Healthy Families Act".  The bill would require employers with fifteen or more employees to provide at least seven paid sick days per year to full time employees.  According to The Des Moines Register, Iowa’s Senators and Representatives are divided on the proposed law, which was first introduced, but not enacted, in 2007.    Existing federal law requires private employers with 50 or more employees and all public employers to provide up to twelve weeks of unpaid leave because of a serious health condition of the employee or a close family member.   However, there is no law that requires paid time off because of illness.

Opponents of the law in Iowa’s delegation are concerned about the impact of another employer mandate on small business.   While no reasonable employer wants its employees to be harmed in the event of an illness, the law as it was proposed in the last Congress not only imposes the obligation of paid leave, but also provides that employees may enforce the act with a civil lawsuit. 

Interested parties should contact their Senator or Representative and let them know your views.

Just days after the Iowa Supreme Court’s ruling legalizing same sex marriage, at least one media outlet is reporting that Iowa employers are scrambling to determine whether they need to adjust their employment policies to comply with the ruling.  Of immediate concern are employee benefit programs that provide coverage for spouses, and policies governing family and medical leave.

An employee in Iowa is already protected from discrimination based upon sexual orientation or gender identity.  However, that protection did not necessarily require an employer to extend benefits to a same sex partner in the same way it would the spouse of a married employee.   The new ruling could change that requirement.  To the extent an employer grants benefits to the spouse of an employee, spouse may now include a person of the same sex.   It is important to note, however, that many employee benefits are governed by federal law, which is not necessarily impacted by the Iowa Court’s ruling.

Employers should also adjust their practices concerning Family and Medical Leave Act compliance.   An covered employee under FMLA has the right to job protected leave to care for a "spouse" with a serious health condition.    FMLA itself defines "spouse" as "a husband or wife as the case may be".  However, the Department of Labor Regulations interpreting FMLA look to the law of the state where the employee resides to determine whether a person is a "spouse." 

Employers are advised to consult with counsel and with their employee benefit provider when adjusting policies and practices to comply with the Court’s ruling.