Sheila Engelmeier sheilae@e-ulaw.com

George Wood gwood@littler.com

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FMLA Update 2017: 7 (or so) lessons from recent cases

ABC Co. has an employee, Tammy, who has a back problem. Over the years, Tammy has submitted various doctor’s notes indicating that she can’t sit or stand for a long time, so ABC has granted her requests for intermittent FMLA leave. Finally Tammy says her pain is so bad, she needs full-time FMLA leave, which ABC grants after receiving the appropriate paperwork from the provider. While out on full-time leave, Tammy posts videos to her Facebook page of herself dancing and drinking at a bar with co-workers.

ABC is enraged, and launches an “investigation,” which reveals that while on leave, Tammy also drove to the office to deliver Avon products she sold to coworkers. But, the client never investigates or asks if Tammy’s back pain actually prevents her from dancing or driving. After confronting Tammy about the video, ABC fires her for violating a workplace “honesty” policy.

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Does ABC have an FMLA interference or retaliation problem?

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“It shall be unlawful to interfere with, restrain, or deny the exercise of or the attempt to exercise” rights under the FMLA. 29 U.S.C. §2615(a)(1)

Burden of Proof ◦ Entitled to FMLA ◦ Some adverse action by employer interfered with

employee’s right to take FMLA, and ◦ Employer’s action was related to the exercise of

attempted exercise of employee’s FMLA rights.

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“It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. §2615(a)(2)

Typically analyzed under the McDonnell Douglas burden-shifting framework: ◦ Engaged in protected activity under the FMLA ◦ Suffered an adverse employment action, and ◦ A causal connection existed between the two.

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Poitras v. ConnectiCare, Inc., 206 F. Supp. 3d 736, 739 (D. Conn. 2016)

Plaintiff’s interference and retaliation claims survived summary judgment, largely because the employer’s “investigation” didn’t investigate whether the employee’s back problem actually precluded her from dancing ◦ Instead the employer relied on his own judgment

that “if she can dance, she can work” (stand/sit)

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XYZ Corp. has an employee, Rodney, who’s out on 12-week FMLA leave after shoulder surgery. When his recovery takes longer than expected, XYZ grants Rodney 4 more weeks of non-FMLA leave. While on non-FMLA leave, XYZ finds Facebook pictures of Rodney partying on the beach and swimming in the ocean. XYZ calls Rodney in, confronts him about the pictures, and asks for an explanation, as well as input from his doctor. Rodney provides neither, and XYZ fires him for “violating a workplace social media policy” and “showing bad judgment.”

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Does XYZ have an FMLA retaliation problem?

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Jones v. Gulf Coast Health Care The trial court held that Plaintiff failed to establish

causation based on temporal proximity for his retaliation claim, reasoning that in the 11th Circuit, the proximity clock starts running when the employee requests or begins leave, not when it ends

Nearly 4 months had lapsed between when his FMLA leave began and when he was fired; thus, no prima facie case

Therefore, the trial court never reached employer’s reason for termination or pretext….BUT

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The 11th Circuit reversed, holding that the clock must run from the end of leave instead

And that fact questions remained as to the employer’s stated reasons for termination because those reasons (violation of social media policy/bad judgment) conflicted with the fact that they’d confronted him about his Facebook pictures, and whether he could have come back to work sooner

Jones v. Gulf Coast Health Care of Delaware, LLC, No. 16-11142, 2017 WL 1396165 (11th Cir. Apr. 19, 2017).

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In the Eighth Circuit, the temporal proximity clock starts running from “the date an employer knew of an employee's use (or planned use) of FMLA leave, not the date it ended.” Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012).

While the Fifth, Sixth and (now) Eleventh circuits measure from the end of leave

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What can an employer do to check on whether an employee is honest in use of FMLA Leave? Can employers check up on them? Medical certifications: ◦ Frequency? ◦ Fitness for duty ?

Other documentation?

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The Court denied summary judgment holding the employer’s request for a “proof of need” documentation (including food receipts in the city where parents resided, travel and lodging expenses) related to the employee’s intermittent absences to care for her elderly parents was evidence of interference with the employee’s FMLA rights.

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29 C.F.R. § 825.307(a): specifically prohibits an employer from obtaining additional documentation from the health care provider once a complete and sufficient medical certification has been provided.

In Diamond, the employer had no evidence to suspect the employee was not properly using her FMLA leave.

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QRS Inc. has an employee, Vickie, who has used 8 weeks of FMLA for the year dealing with knee issues. Her doctor tells her she needs surgery which will require 2-3 months of recovery. QRS’ HR department mistakenly tells Vickie she has exhausted all her FMLA leave, and encourages her to delay surgery until next year. Vickie agrees to do so and keeps working. However, her performance goes downhill, and QRS fires her.

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Does your client have an FMLA interference or retaliation problem?

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Munter v. Lifecare Med. Ctr., No. CV 14-4575 (MJD/LIB), 2016 WL 2858793 (D. Minn. May 16, 2016)

Summary judgment granted for employer because even though HR made a serious mistake, plaintiff needed more than 4 weeks to recover, meaning the mistake did not reach the level of prejudice needed

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DEF Co. has a “no-fault” attendance policy in which an employee incurs “points” for absences for any reason. These points are taken into account for various purposes, including calculating annual raises. Tom, an employee, earns some points for days off on approved intermittent FMLA leave. Tom has been a good employee, but DEF fires him for refusing to remove his hat. Tom brings an FMLA interference claim, arguing that he could have received a larger raise without the points. What result?

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Summary judgment on the interference was granted in favor of the employer on this claim, because the employee only argued that he believed that the points hurt his raise, and the employer presented evidence that his raise that year was in line with what he’d received previously.

Norring v. Pace Indus. Castings, LLC, 215 F. Supp. 3d 810 (D. Minn. 2016)

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Employer claims legitimate nondiscriminatory reason for termination is insubordination (refused to remove hat in the office) and on-going failure to perform work assignments

Employee claims: proffered reason is not supported by facts: ◦ Recent favorable performance review ◦ Similarly situated employee who did not engage

in protected activity was treated more leniently ◦ Employer changed reason for termination

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SJ denied due to “significant evidence” supporting employee’s rebuttal ◦ No basis in fact ◦ Favorable review ◦ Treatment of other employees ◦ Changing reasons for termination ◦ Policy deviation (Employer had progressive

discipline policy that was not followed)

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Fiorentini v. William Penn Sch. Dist., No. 16-1565, 2016 WL 7338428 (3d Cir. Dec. 16, 2016)

A reading specialist, who did not hold a

teaching certification was told she may be laid off. The employee informed principal of need to have breast biopsy; diagnosed with breast cancer. She alleged the principal, on learning she would need to take leave, “yelled at her about impending deadlines.”

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Thereafter the principal told her the description of her position would change. The grades of children she would deal with and her responsibilities would change, but her job title and salary would remain the same.

The court of appeals ruled that plaintiff had failed to demonstrate adverse employment action. Although plaintiff maintained that her change of duties had been a demotion, the court of appeals contended that the reassignment did not constitute an adverse employment action.

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LMN Corp. employee, James, suffers from PTSD. James is a delivery driver who has a lot of customer contact. A number of customers have complained that James is often late, rude and surly. LMN’s usual (but unwritten) procedure for handling customer complaints is to talk to both the customer and the driver, and that policy has been followed with James. Then James takes a FMLA leave to seek therapy and anger management training, but shortly after his return to work, another customer complains. This time, after talking to the customer, LMN HR fires James without asking for his side of the story. In the termination meeting, HR mentions that James’ “time off” was a factor in his termination.

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Clarke v. Nw. Respiratory Servs., LLC, No. A16-0620, 2017 WL 393890 (Minn. Ct. App. Jan. 30, 2017)

Summary judgment for employer affirmed. Although employee made out prima facie case (based on temporal proximity and supervisor’s negative comment), employer’s reason for termination withstood pretext analysis.

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Even though the employer deviated from its general procedures by not asking for employee’s side of story, given the complaints against the employee, that deviation from an unwritten policy was not enough to create a genuine issue of material fact

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Frantz, an employee of VW LLC, comes to HR and says he needs FMLA to care for his sick grandfather. HR tells Frantz that FMLA does not apply to grandparents, but that Frantz might qualify for coverage under the company’s short-term disability (STD) policy. Frantz does not mention FMLA again or apply for STD. When he takes 2 days off to care for his grandfather, the company fires him. Does VW have an interference problem?

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Yes. In Coutard v. Mun. Credit Union, 848 F.3d 102 (2d Cir. 2017) summary judgment for the employer was reversed on this question

In discovery, the plaintiff presented evidence that the grandfather had raised him since he was a small child – however, he never told his employer at the time

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Nonetheless, the Second Circuit Court of Appeals held that fact questions precluded summary judgment

In part, the Court relied on DOL factsheets and online information about in loco parentis coverage which, it held, made it reasonable to expect that the employer should have questioned whether the grandfather might be covered

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An in loco parentis issue may fail if the plaintiff fails to plead it; Verby v. Paypal, Inc., 2014 BL 119616, 14 (D. Neb. Apr. 29, 2014)(bringing the issue up sua sponte and finding that “There is nothing here to suggest that the plaintiff's grandmother, however beloved, stood in loco parentis to the plaintiff.”)

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In 2015, the Department of Labor released a fact sheet and online FAQ that seemed to mentioned sibling FMLA coverage, if the sibling stood in loco parentis ◦ “Although no legal or biological relationship is

necessary, grandparents or other relatives, such as siblings, may stand in loco parentis to a child under the FMLA as long as the relative satisfies the in loco parentis requirements.” DOL Factsheet, July 2015

We found no reported decisions on this issue since the factsheet came out

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Tom, Dick, Harry and Sue are the majority shareholders of four separate corporate entities that each operate a different business – a truck stop, two bars, and a convenience store - all in different towns, with different groups of employees. None of the entities has more than 20 employees, but altogether they employ more than 80. A former employee sues for FMLA interference. Does the act apply?

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It did in, Dodge v. JCJL Enterprises, Inc., No. 1:15-CV-00924-CL, 2016 WL 4211895, at (D. Or. Aug. 9, 2016), at least for the purposes of summary judgment

The court held that the separate entities met the integrated employer test of 29 C.F.R. § 824.104 which weighs factors including; ◦ (i) Common management; ◦ (ii) Interrelation between operations; ◦ (iii) Centralized control of labor relations; and ◦ (iv) Degree of common ownership/financial control 33

The court held that the integrated employer test was satisfied because; ◦ All four companies were managed by a single

individual; ◦ One central payroll system was used; ◦ Inter-business loans were freely made between

entities; ◦ Employment policies at all entities were uniform,

and they shared the same employee handbook

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