Despite the fact that the Family and Medical Leave Act has been a part of the American employment landscape for 17 years, there are still many pitfalls for employers in administering FMLA.

Two recent federal court cases bring home the lesson that even if an employee’s leave request is handled properly and all requested FMLA time is granted, the actions or attitude of the employee’s supervisor can create liability for the employer.

Supervisor’s repeated mention of FMLA time off in evaluations creates a claim.

Employee Dorothy Goelzer had worked for the Sheboygan County government for two decades, serving the last few years as an administrative assistant. In early evaluations her supervisor, Adam Payne, praised Goelzer’s performance and attendance. From 2002–2005 Goelzer took several fairly extensive FMLA leaves for various reasons. In 2006 she requested and was approved for another FMLA leave for foot surgery for September 22 through November 20.

On August 15, 2006, Payne’s job title changed and for the first time in his seven years of supervision of Goelzer he gained the sole authority to discharge her. On September 8, two weeks before Goelzer was to commence her latest FMLA leave, Payne discharged her with an effective date of November 30, 2006. He placed her on paid leave until then so that she would receive the previously-approved FMLA leave.

Goelzer sued the County, alleging that the County had interfered with her right to reinstatement under the FMLA and had retaliated against her for taking FMLA leave. The County contended that her supervisor had merely exercised his statutory authority to appoint an administrative secretary of his own choosing and had decided to hire another person with a larger skill set. The trial court granted summary judgment in favor of the County, but the Seventh Circuit Court of Appeals ruled that Goelzer had offered enough evidence to go to trial and present her case to a jury.

Key among the Court’s considerations were the numerous written comments by Payne showing frustration with Goelzer’s repeated leaves of absence. Despite still giving her decent overall evaluations, Payne complained about her use of sick leave and FMLA time in writing at least four times from 2002 through 2006.

In light of these comments, coupled with the timing of her notice of termination two weeks before her 2006 FMLA leave was to commence, the Court determined that a jury might find that her termination was in retaliation for and/or interference with her exercise of her FMLA rights and ruled that she could go to trial.
Goelzer v. Sheboygan County, (7th Cir. May 12, 2010).

Supervisor’s “harassment” about leave time supports a claim of FMLA interference.

In another case, employee Vanessa McFadden had worked full time for the employer (a law firm) for more than ten years when she needed FMLA time off to care for her husband, who had cancer. The employer did not deny any requested leave time and provided a combination of paid company leave and unpaid FMLA leave, followed by a reduced work schedule.

Nonetheless, the employee claimed the firm interfered with her ability to take additional leave by misinforming her about her entitlement to leave under the FMLA and by harassing her for taking too much time off. The court stated that a claim for interference with FMLA rights has only two elements: first, that the employer somehow interfered with, restrained, or denied the exercise of FMLA rights; and second, that the employee was prejudiced by the employer’s actions. The claim does not require that the requested leave was denied; it is enough if the employee suffered a direct monetary loss or other prejudice as a result of the interference.

McFadden’s evidence of interference was fairly sparse. She claimed that a member of the firm told her that her need to miss work on days when her husband had medical appointments was “going to be a problem.” Apparently feeling that her job was threatened, McFadden arranged for her sister to care for her husband on those days and reported to work as instructed. As a result, she claims, she took less time off than she was entitled to take and had to pay her sister to take care of her husband.

The Court of Appeals found this was sufficient evidence to send the employee’s claim to a jury—who could then determine whether the employer had interfered with McFadden’s FMLA rights.
McFadden v. Ballard Spahr Andrews Ingersoll LLP (D.C.Cir. June 29, 2010).

The Lesson

Train supervisors not to convey frustration or criticize employees for FMLA- protected leaves.

It is critical that supervisors understand the FMLA and the rights it grants—and that complaining or showing frustration about an employee’s absence due to FMLA leave is unacceptable and, in fact, might be illegal. In both of these cases, all requested FMLA leaves were granted. Nonetheless, the supervisors’ comments led to both employees having a right to a jury trial to determine their claims—an event that employers should try to avoid.

Clearly, it is not enough to have the right policies and procedures if supervisors can create FMLA claims due to their intolerant attitudes. Train those supervisors, and train again next year!