Mikhail Vasilyev, CC0, via Wikimedia Commons
Good questions; I thought maybe you knew. Ok, fine, I’ll tell you.
It depends.
Har de har har, Eric. You’re a funny lawyer guy!
But, seriously, it does depend. Heck, I’d tell you the same thing if you were my client. And I’m not even billing you for it.
Fired twice?!?
Consider this recent FMLA decision from the Eighth Circuit Court of Appeals. The timeline is a bit kooky. So, work with me.
The plaintiff alleged that during the first year and a half of his employment, the defendant excused him from working on days when he suffered from asthma complications. But about a week after the plaintiff submitted paperwork to the defendant seeking intermittent FMLA leave, he was suspended for thirty days because, according to the defendant, the plaintiff had missed too much work. The plaintiff further alleged that less than a year later, after he missed work for asthma complications, the defendant terminated him.
So, the plaintiff filed state and federal charges of discrimination. A few months later, the defendant rehired him but put him in a new position that was more physically demanding. Supposedly, the plaintiff informed his supervisor that his new duties aggravated his scoliosis. When he arrived to work one day with doctor-recommended physical restrictions, the defendant terminated him once again. As a result, the plaintiff filed more state and federal administrative charges.
Eventually, the plaintiff sued in federal court alleging violations of the Family and Medical Leave Act, among other things. The district court dismissed the plaintiff’s FMLA claims as time-barred. But, the appellate court disagreed.
Ordinary and willful FMLA violations.
You see, the Family and Medical Leave Act has a two-year statute of limitations for ordinary violations. But, in situations where the FMLA violation is “willful,” a plaintiff has three years in which to sue.
Willful, eh? Is that like telling someone, “We’re firing you because you took FMLA leave?”
Yes, that would be willful. But, the bar isn’t quite that high. A violation is willful if “the employer either knew or showed reckless disregard” for whether it violated the FMLA.
For example, in the Eighth Circuit case, the appellate court concluded that the lower court was too quick to dismiss a complaint that included allegations that the defendant did not make good faith efforts to establish and enforce policies to address and prevent illegal discrimination against its employees. The plaintiff also alleged that the defendant “failed to properly train or otherwise inform its supervisors and employees concerning their duties and obligations under the laws, including the FMLA.” If true, those allegations could support a willful FMLA violation.
Employer takeaways.
Beyond having FMLA policies and enforcing them, maintaining good documentation, and training supervisors on their FMLA obligations, one of the easiest ways to avoid willful FMLA violations — and ordinary FMLA violations — is to consult outside employment counsel.
And while I’d be flattered if one of you testified, “I relied upon this snarky blog called The Employer Handbook,” I suggest that you actually pay a lawyer for FMLA advice.