Outside law firm defending company in FMLA claim gets sued for FMLA interference

Wait! That’s not a thing now, is it? IS IT!!!

I’ll be right back. I need to find my special set of “clutching” pearls.

(And check the sign-up stats for the free “2017 Employment Law In Review” webinar I’m hosting on December 7, 2017, from 12-1 pm EST with five of the top employment-law bloggers in the universe. If there’s still space left, you can sign up here or here).

As my arrogance subsides, I can feel that void filling with fear over this Family and Medical Leave Act lawsuit. Actually, hold up a sec as I read the Court’s decision in Carter v. Spirit Aerosystems, Inc. (here).

Remember back when the Ninth Circuit held that an employee could sue his employer and the company’s lawyer for retaliation under the Fair Labor Standards Act? I blogged about it here. Well, there are a lot of parallels between the FLSA and the FMLA. For starters, the U.S. Department of Labor’s Wage and Hour Division administers both federal laws. Plus, the FMLA’s definition of “employer” largely tracks the definition of “employer” used in the FLSA.

So, it was only a matter of time before someone tried to ride the coattails of the Ninth Circuit’s messed-up opinion to label a law firm as an “employer” under the FMLA. Fortunately, the plaintiff’s argument in Carter v. Spirit Aerosystems, Inc. was easily rebuffed.

The plaintiff’s argument went like this:

To support the FMLA interference claim, Carter alleges that [the law firm] Foulston, by virtue of [Foulston attorney Teresa] Shulda’s conduct, “acted as Plaintiff’s employer.” Carter points to the DOL investigative report, where the DOL investigator wrote: “Ms. Shulda stated that they would start an interactive dialogue with Mr. Carter . . . [and] also stated they would recommend an earlier call-in time for Mr. Carter . . . . [Lastly,] Ms. Shulda further stated that she would discuss the removal of Mr. Carter’s [] write-up.” Carter claims Shulda personally participated in Spirit’s employment decisions and, therefore, can be held liable as Carter’s employer.  

And the Kansas federal court brushed it off thusly:

Here, although the FMLA’s “employer” definition is to be broadly construed, the Court does not construe it so broadly to include Foulston in its capacity as Spirit’s legal representative. The Court agrees with the Eckert Court that, as a general rule, attorneys retained to defend an employer-defendant against an employee-plaintiff do not become the plaintiff’s employer merely by their representation….The Court looks at the totality of the circumstances, and here the circumstances do not support Carter’s claim that Foulston is his employer. 

Whew!

But sorry, in-house attorneys. You’re not off the hook. You may be an FMLA employer if you (1) have the power to hire and fire employees; (2) supervise and control employee work schedules or conditions of employment; (3) determine the rate and method of payment; and (4) maintain employment records.

***hugs timesheet of 0.1’s and 0.2’s***