FMLA 101

Family, Medical, and Other Leave Discrimination
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Family and Medical Leave Act (FMLA)

The FMLA—for you intrepid souls who want to read it—can be found at 29 U.S.C. § 2601. This is the only federal law that explicitly provides a right for employees to take time off from work to provide self care (e.g., you just had surgery and need time to recover) or time to care for immediate family members.

Unfortunately, the law has a limited scope. To begin with, it applies only to employerswith fifty or more employees within a seventyfivemile radius. This excludes a wide swath of American employers, including almost all mom and pop operations. It also excludes companies that have dispersed places of business. For instance, if an employer had fortynine employees in Virginia and another fortynine based in Connecticut, it would not be covered by the FMLA. The second major limitation of the act is that it provides only for unpaid leave. For this reason, its use is not a reality for those families living paycheck to paycheck

Additional Resource:

The American Bar Association recently released a 330page report, 2013 Midwinter Meeting Report of 2012 Cases. You can find it at the FMLA Insights Blog (http://www.fmlainsights. com/2013%20FMLA%20report%20(ABA).pdf), a very useful site for FMLA law.

This doesn’t mean that you are automatically out of luck if your employer has fewer than fifty employees. Some states, like California and Massachusetts, as well as the District of Columbia, have their own laws that govern medical leave. (As is sadly often the case, we have no such luck in Virginia.)

Nevertheless, the FMLA provides important protections to eligible employees. Covered employees are entitled to at least twelve weeks of unpaid leave, and employers are liable for any attempts to interfere with an employee’s efforts to take leave or to retaliate against those who seek its protections.

On the plus side for the FMLA, there is no requirement that you go to the EEOC or another state administrative agency before going to court. You can file a lawsuit any time within two years after the violation occurred. You have up to three years if the violation was willful, which means your employer knew its conduct was prohibited by law or that it acted with reckless regard for the law. The interpretation of what will satisfy the “willful” standard will vary by jurisdiction, so it’s best not to wait three years to file. Moreover, the longer you wait to file the claim, the less likely you are to win, as memories fade and documents disappear.

Sample Scenario

Gabriela has worked as a receptionist at a large company for the past five years. She has two sons, ages fifteen and thirteen. She never had any problems at the company until she got a new manager, Marcy. Marcy believed that she had been hired to “whip this place into shape.” She made it known that she planned to “crack down” on “excessive leave.” Marcy made good on her promise, giving everyone a hard time about taking days off. She even commented when she believed an employee was taking “excessive trips to the ladies’ room.”

At the beginning of the school year, Gabriela’s oldest son was injured in a sporting accident. He was taken to the emergency room and told that he had torn a ligament and would need surgery in the coming weeks. In the meantime, he could wear a knee brace. Gabriela returned to work the next day with medical documentation of her son’s injury. She told Marcy that she would like to take that Thursday and Friday off to help care for her son after his surgery. Marcy said that it would be difficult to find someone to cover the shift and asked whether the surgery could be rescheduled. Shocked, but afraid to lose her job, Gabriela rescheduled the surgery for the following week.

The following week came, and Gabriela came back to work with her sons in the car. She went in to talk to Marcy about who would cover her shift while she was out on FMLA leave. Marcy rolled her eyes and asked, “Do you really need to take this time off? It seems like you’ve been out a lot.” Gabriela had not been out a lot—hardly at all. She explained to Marcy that, following her son’s surgery, he would not even be able to get out of the bed to use the bathroom without help. Marcy laughed and said, “Just teach him to pee in a bottle!” Gabriela started to cry. Coworkers began to notice, so Marcy ushered her out of the building. While Gabriela stood crying in front of her car, Marcy tried to calm her down. She asked to be introduced to her sons. Gabriela complied. The oldest son asked why his mom was crying and Marcy, as if it were a joke, said, “I told her that you could just pee in a bottle.”

Gabriela took two days off as scheduled. When it became clear that her son would take more time than expected to heal, she wanted to ask for more time off, as she still had plenty of FMLA leave. But given her last attempt to get time off, she decided not to. Plus, the leave was unpaid and, as a single mother, she could not afford it. She went back to work, leaving her son to be cared for by his grandmother in the morning and her thirteen year old son when he got home from school.

When she returned to work, her relationship with Marcy was strained. Marcy barely spoke to Gabriela and openly excluded her from lunch invitations with coworkers. Three weeks after returning to work, Marcy wrote her up for an incident that occurred two months before Gabriela took FMLA leave. It involved an upset customer who had complained about something. When the incident occurred, Marcy confronted Gabriela about it. Gabriela tried to explain, but Marcy cut her short and said, “I don’t want to hear it.” Now, months later, the regional manager came through the office and asked to meet with Gabriela. The only private place to meet was the lunchroom. There, the regional manager asked Gabriela for her version of events. He told her to wait while he went to “check out her story.” An hour later, he came back and told Gabriela to turn in her key card and collect her things. She was being fired. Incredulous, Gabriela asked why. The regional manager said, “Because you lied to Marcy about what happened.”

Gabriela found herself without a job in the worst economic downturn in a generation. She found parttime work in a restaurant, but it was not nearly enough to pay her mortgage. She made it as long as she could on credit cards, but ultimately fell behind on her mortgage and lost her house.

Can Gabriela do anything about this? If so, what? What would be the potential value of any lawsuit?

First, Gabriela has two claims: (1) interference with attempts to take FMLA leave and (2) FMLA retaliation. A claim of FMLA interference is just what it sounds like. An employer cannot interfere with an employee’s efforts to take FMLA leave. In this instance, Marcy was clearly hostile to Gabriela’s efforts to take leave and discouraged her from doing so. She intentionally interfered with her efforts to take FMLA leave even though she ultimately granted her some.

Gabriela also has a strong claim of FMLA retaliation. Specifically, it certainly seems like Marcy set out to fire Gabriela because she took FMLA leave to care for her son. The company likely will argue that it legally fired Gabriela based on an incident with a customer. But the facts of this case suggest that this is what courts call “pretext.” That is, the company is using the incident with the customer as a cover for firing Gabriela, when the real reason for her termination was the fact that she took FMLA leave. Evidence the company’s cited reason for her termination was false, in that the incident with the customer took place months before she was fired. The company acted only after Gabriela took leave. Moreover, based on the regional manager’s comments, it sounds like Marcy made up the story that Gabriela lied about the incident. But the truth was that Marcy would not even allow Gabriela to explain what happened. She could not have lied even if she wanted to.

One other matter that the company may try to hide behind is the fact that it was the regional manager, not Marcy, who made the decision to fire Gabriela. In essence, the company will argue: “Well, even if Marcy arguably wanted to discriminate against Gabriela, she didn’t make the termination decision.” This is called the “cat’s paw theory.” This derives from a fable in which a monkey tricks a cat into scooping some chestnuts from the burning embers of a fire. The cat does so, burning its paw. The monkey then takes off, chestnuts in hand. In this context, the idea is that the regional manager fired Gabriela even though he had no discriminatory motive. Rather, he was duped by Marcy into firing Gabriela. Some courts have thankfully stopped these maneuvers by disallowing cat’s paw tactics. Thus, here, the company will be liable because it is apparent that the regional manager relied solely on Marcy’s account in deciding to fire Gabriela. (The company might win on this point if it could show that the regional manager made the decision after conducting his own independent investigation, even if Marcy had initially raised the issue. But it is clear here that the manager simply relied on Marcy’s untruthful account in making his decision. And now the company is going to get burned!)

What does Gabriela get if she sues and wins? She would be entitled to get lost wages and reinstatement or front pay. Lost wages are the amount of money she would have earned had she stayed employed. For the sake of easy math, let’s say Gabriela made $5,000 per month and, by the time her case went to trial, she was out of work for a year. So, $5,000 times twelve is $60,000. She would also be entitled to interest on this amount.

Gabriela might also be eligible for front pay. Front pay is wages she would have earned after the judgment. Let’s assume in this case that Gabriela got another job after a year, but it paid only $4,000 per month. As front pay, Gabriela would be entitled to the difference between what she would have made and what she currently makes for some time out into the future. Here, Gabriela is out $1,000 per month, or $12,000 per year. If a court awards her two years’ front pay, she gets two times $12,000, or an additional $24,000. (The amount of front pay is generally up to the court to determine. Front pay awards are usually in the range of two to five years, though courts can award more or less than these amounts.) So, Gabriela here would be eligible for $60,000 plus $24,000, or $84,000.

One great aspect of FMLA is that it allows for something called “liquidated damages.” These damages are added to punish a company for bad behavior. A court can award liquidated damages by doubling the underlying award. In this case, that bumps Gabriela’s award up to $168,000. A company can avoid liquidated damages by arguing that, even if it violated the law, it had a good faith belief that it was not acting illegally. That would be tough for the company to get by with here, given Marcy’s blatant behavior.

Another plus to the FMLA is that employees who sue and win are entitled to an award of attorney’s fees. Sweet justice. This means that the company will have to pay its attorneys and Gabriela’s! Unless Gabriela’s fee agreement provides otherwise, she will get to keep her $168,000 (minus what the IRS will take).

Unfortunately, Gabriela cannot recover damages for pain and suffering under the FMLA, although she would have been able to under other discrimination statutes. If this were a sexdiscrimination lawsuit, she could. She also cannot recover for other losses. For instance, she won’t be able to get the company to pay for the loss of her home and other associated costs.