Many employers have adopted no-fault attendance policies. Under the typical policy, employees are assessed points for violations of the attendance policy without regard to the reason for the absence. See, e.g., Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109-10 (6th Cir. 1997).

Occasionally, a no-fault attendance policy will collide with an employee’s use of FMLA.

A FMLA regulation specifically states that employers are prohibited from counting qualifying leave as part of a no-fault leave policy. 29 C.F.R. 825.220(c). And a termination based only in part on an absence covered by the FMLA, even in combination with other absences, may still violate the FMLA. Cavin v. Honda of America Mfg., Inc., 346 F.3d 713, 726 (6th Cir. 2003)

Thus, if an employee is terminated due to a no-fault attendance policy and is subsequently able to demonstrate that he had points assessed against him that should have been protected under the FMLA, then the employee will be entitled to damages and/or reinstatement to his former position. See 29 U.S.C. 2617.

Yesterday, Magistrate Judge Tu M. Pham from the Western District of Tennessee issued a decision granting a plaintiff’s motion for partial summary judgment in a FMLA case. The name of the case is Green v. Third Party Solutions, Inc. and a copy of the decision can be accessed by clicking here. SJ Order. There are a couple of interesting points in the decision.

First, the court found that the defendant had interfered with the plaintiff’s FMLA rights thus finding in favor of the plaintiff on her FMLA interference claim. (SJ Order at 12-19). The court found that the defendant improperly terminated the plaintiff’s employment based on its belief that the plaintiff had not submitted a properly completed health care provider certification form regarding her FMLA leave request. Specifically, the court held that the FMLA certification form completed by the healthcare provider was sufficiently complete as a matter of law even though the form did not set forth an end duration date. As a result, the court held that the defendant illegally interferred with plaintiff’s FMLA rights.

Second, the court held that the defendant had waived its right to raise and rely on an after-acquired evidence defense, which would cut off the plaintiff’s damages if successful. The defendant argued that it discovered during litigation that the plaintiff had lied on her job application; therefore, plaintiff’s damages should be cut off as of the date it learned of plaintiff’s deception.

As an initial matter, the court agreed “with the majority of the courts and conclude[d] that the after-acquired evidence defense is an affirmative defense that must be pleaded under [FRCP] Rule 8(c).” (SJ Order at 26-27). The court next found that the defendant had not raised the after-acquired evidence defense in its answer waiting to first raise the matter in its motion for summary judgment. The court then held that the plaintiff would be prejudiced if it permitted the defendant to raise the defense after the close of discovery. Thus, the court determined that the defendant had waived its right to raise and rely on the after-acquired evidence defense.

Nice win for the plaintiff in this case.

Under the FMLA, any eligible employee who takes FMLA leave shall be entitled – on return from such leave -to be restored by the employer to the position of employment held by the employee when the leave commenced, or to be restored to an equivalent position. 29 U.S.C. § 2614(a)(1). This right is qualified however by 29 U.S.C. § 2614(a)(3)(B), which essentially provides than an employee returning from FMLA leave is not entitled to restoration unless he would have continued to be employed if he had not taken FMLA leave. A recently decided case from the 6th Circuit Court of Appeals addresses the interplay between these statutory provisions.

In Cutcher v. Kmart Corp., 2010 WL 346131 (6th Cir. Feb. 1, 2010), the plaintiff returned from FMLA to learn that her employment had been terminated allegedly because of a reduction in force. Cutcher v. Kmart Corp. Invoking 29 U.S.C. § 2614(a)(3)(B), the defendant argued that the plaintiff would have been terminated even had she not taken FMLA leave. The plaintiff, however, challenged her termination arguing that the defendant negatively considered her use of FMLA when it made the decision to terminate her employment and that the defendant retaliated against her by she used FMLA leave.

The 6th Circuit reviewed the evidence presented by the plaintiff, which included the defendant’s consideration of the plaintiff’s use of leave on her appraisal score, and determined that a reasonable jury could conclude that the plaintiff’s termination was based in part on the plaintiff’s use of FMLA protected leave. Notably, the 6th Circuit held that the proof amassed by the plaintiff established a jury issue on plaintiff’s FMLA interference claim under 29 U.S.C. § 2615(a)(1) and plaintiff’s FMLA retaliation claim under 29 U.S.C. § 2615(a)(2).

Last week the 6th Circuit issued its opinion in Hunter v. Valley View Local Schools
— F.3d —-, 2009 WL 2601863 (6th Cir. Aug. 26, 2009). hunter-v-valley-view-decision.pdf

This decision represents a significant change in analyzing and proving FMLA discrimination/retaliation claims. And in my opinion, the decision favors plaintiffs who bring these types of claims.

Following the U.S. Supreme Court’s decision in Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2348-49 (2009), which distinguished statutes that permitted single motive and mixed-motive claims, the 6th Circuit held that the FMLA, like Title VII, authorizes claims in which an employer bases an employment decision on both permissible and impermissible factors.

Thus, under the 6th Circuit’s new standard, if a plaintiff presents evidence establishling that a defendant has discriminated/retaliated against the plaintiff because of the plaintiff’s FMLA leave, then the burden shifts to the defendant to prove by a preponderance of the evidence that it would have made the same decision absent consideration of the plaitniff’s FMLA leave.

Accordingly, the plaintiff will win the case unless the defendant can prove it would have taken the adverse action whether or not it considered the plaintiff’s FMLA leave in its employment decision.

What happens if you request FMLA leave and your employer grants you FMLA leave, but your employer later advises you that it made a mistake and you were not entitled to take FMLA leave? Do you still get the protections (e.g. job reinstatement) that the FMLA affords? Maybe.

The answer depends on whether you can establish the elements of the doctrine of equitable estoppel. This doctrine generally works to prevent party #1, who made a factual representation to party #2 on which party #2 reasonably relied, from denying the gain or value that party #2 acquired as a result of reliance on the misrepresented fact.

A new case from the 6th Circuit clarifies that the doctrine of equitable estoppel may be invoked by an employee in a FMLA case to prohibit an employer from arguing that the FMLA does not cover the employee where the employer mistakenly grants the employee FMLA leave. See Dobrowski v. Jay Dee Contractors, Inc., ____ F.3d ____, 2009 WL 1940368 (6th Cir. 2009). opinion.pdf

Previously, many employers in the 6th Circuit argued that absent a showing of bad faith by the employer or an intent to mislead an employee, the doctrine of equitable estoppel should not be applied. In other words, employers argued that “mistakes” on the part of the employer could not give rise to a successful invocation of the doctrine of equitable estoppel.

In Dobrowski, no bad faith or intent to mislead on the part of the employer existed; the case simply involved an employer who mistakenly advised an employee that the employee was eligible for FMLA leave when it was undisputed that the employee did not meet the FMLA’s eligibility requirements.

Anayzing U.S. Supreme Court cases, as well as cases from the 6th Circuit and other appellate circuits, the Dobrowski court held that a showing of bad faith or intent to mislead on the part of the employer was not necessary for the doctrine of equitable estoppel to apply.

Instead, to prevail on an equitable estoppel argument in a FMLA case, the Dobrowski court stated that an employee need show only: (1) a definite misrepresentation as to a material fact, (2) a reasonable reliance on the misrepresentation, and (3) a resulting detriment to the party reasonably relying on the misrepresentation.

Thus, under the 6th Circuit’s rule, an employee in a FMLA case does not have to establish bad faith on the part of the employer or an intent to mislead on the part of the employer to successfully invoke the doctrine of equitable estoppel and receive the protections of the FMLA.

One basis for taking leave from work under the Family and Medical Leave Act (FMLA) is where an employee suffers from a “serious health condition” that renders the employee unable to perform the functions of his position. 29 U.S.C. § 2612(a)(1)(D).

The FMLA defines a “serious health condition” as “an illness, injury, impairment, or physical or mental condition that involves:

(A) inpatient care in a hospital, hospice, or residential medical care facility; or

(B) continuing treatment by a health care provider. 29 U.S.C. § 2611(11).

The FMLA’s implementing regulations, which further explain and define the terms “serious health condition”, “inpatient care”, and “continuing treatment”, were amended in early 2009. See 29 C.F.R. § 825.113, 825.114, and 825.115. Click here..

Therefore, attorneys, human resource professionals, and affected employees, need to make sure that they consult the amended regulations should a question regarding the subject of a “serious health condition” arise.

A recent case from the Eastern District of Tennessee reminds us that while an employee must provide notice and a qualifying reason for requesting leave under the FMLA, the employee need not actually mention the FMLA by name. Treadaway v. Big Red Powersports, LLC, 2009 WL 677892 (E.D. Tenn. Mar. 12, 2009).

In Treadaway, the court determined that a genuine issue of fact existed regarding whether the plaintiff gave adequate notice to her employer that she needed leave under the FMLA. Id. at *11. The plaintiff, who was pregnant, requested leave from work based on the fact that her physician did not want her exposed to carbon monoxide emissions at defendant’s facility.

As noted by the Treadaway court, when determining whether notice is proper under the FMLA, “[t]he critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition.” Id. at *8. Specifically, the employee must provide the employer “enough information for the employer to reasonably conclude that an event described in FMLA § [2612(a)(1) (D) ] has occurred.” Id.. According to the court, “[w]hat is practicable, both in terms of the timing of the notice and its content, will depend upon the facts and circumstances of each individual case.” Id.

From my perspective, the federal Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. 2601 et seq., is one of the best pro-employee laws on the books. The law generally provides for medical leave to those persons who have been employed for more than a year at a company that employes 50 or more employees within a 75 mile radius. The FMLA also generally provides for restoration to the same or equivalent position at the same rate of pay after leave is taken. And, the FMLA also generally prohibits a company from terminating an employee by considering FMLA covered absences when terminating the employee. Finally, as discussed below, the FMLA generally prohibits a company from terminating an employee in retaliation for the employee taking leave.

Earlier this year I arbitrated a FMLA case on behalf of a client. We finally received the arbitrator’s award last week. The arbitrator found that the company illegally “interfered” with my client’s FMLA rights by considering/taking into account his FMLA covered absences when the company terminated his employment. In addition to damages, the company was ordered to pay attorney’s fees. Without the FMLA, my client would have been without a remedy to challenge his termination.

Also, in a noteworthy decision released by the Sixth Circuit Court of Appeals on 8/15/08, my friend and colleague Nashville attorney Doug Janney prevailed in a hard fought FMLA case. The case is Bryant v. Dollar General Corp., 538 F.3d 394 (6th Cir. 2008). Click for PDF. The court affirmed the jury verdict that Doug obtained for his client rejecting the company’s argument on appeal that the plain language of the FMLA does not prohibit retaliation for taking FMLA leave. The court unanimously held that Dollar General’s reading of the FMLA would essentially render the FMLA a nullity if an employer could terminate an employee for taking covered medical leave. Thus, there is no question that (in the Sixth Circuit at least) the FMLA prohibits employers from taking adverse employment actions against employees based on the exercise of FMLA leave.