A Lesson in FMLA Damages: FMLA Retaliation in Layoff Costs Verizon Big Money

Posted on: September 20, 2017 0

By Marti Cardi, VP-Product Compliance
& Gail Cohen, Director-Employment Law/Compliance

Employers, when was the last time you asked the question “What could an FMLA suit potentially cost?” For Verizon, the answer was “a lot,” including a judgement that awarded $800,000+ to a former employee as well as:

    Substantial attorneys’ fees and costs (almost always more than the fees incurred by the plaintiff)

Business disruption and loss of productivity by its employees who had to prepare and serve as witnesses, locate and review documents and assist with other inevitable litigation-related tasks

Here’s the entire story and your opportunity to learn an important lesson.

Facts. Suzette Walker worked for Verizon for over 36 years, starting as an intern and working her way up to a position paying over $93,000.  Walker had a history of good reviews with the exception of 2013, when she was dinged for being absent from work. Her absence was attributed to an FMLA leave taken to recover from a shoulder injury.  In 2015, that review cost Walker her job.

Verizon’s employee evaluation system had 4 ranking levels:  Leading (the top score and rarely given); Performing (employee met and periodically exceeded expectations); Developing (employee had not met objectives and requirements, and improvement was needed) and New (employee had not worked long enough to be evaluated).

In 2013, Walker was assigned to a new position but then had to take FMLA leave for shoulder surgery and recovery.  Walker’s manager, Brian Magee, wrote in her mid-year evaluation:

Suzette [Walker] was moved to Conduit/Highway in the first half of the year due to existing knowledge of conduit and the City Permit process. GPIS review has been a positive transition, but conduit design has been hard to transition.  Suzette has missed time due to an injury, which has made the transition difficult.  The conduit area is still setup for the former Conduit Engineer and I have received complaints about the conduit mailbox being full. We are not where the Conduit/Highway Team needs to be at this time.  [Emphasis added.]

This was written when Walker had been out on FMLA leave for nearly 2-1/2 months and back to work at her new position part time for only about 3 weeks.  In the 2013 year end performance review, which built upon the mid-year review, Magee gave Walker a “Developing” rating, although she had always received a “Performing” score in past years (and was also rated as “Performing” in 2014).

The layoff.  In 2015 Verizon instructed Magee and another manager to eliminate one person from their two teams as part of a reduction in force.  The managers were trained on a “rate and rank” process and instructed to use that process to determine who to terminate, looking back at each employee’s performance over the last two years.  Instead, they spoke by telephone and agreed to select Walker for layoff.  Magee then contrived rate and rank scores that justified the decision.  Walker ended up on the bottom of the rankings, in part because of her “Developing” score in 2013 which counted as only 1 point in the rate and rank process.  A “Performing” score counted as 3 points.  Walker received a total score of 13 and would have tied with the other lowest employee, who received a 15, but for the hit on her 2013 evaluation.  Moreover, the other employee had been on a recent performance improvement plan that, according to the rate and rank process, should have cost him 3 points.  These points were not deducted from his overall rate and rank score.

In support of his bogus rate and rank score, Magee wrote that Walker “received a D[eveloping] rating in 2013 as she hadn’t learned the core engineering role as quickly as expected . . . ”

The verdict.  After a five-day trial, the jury returned its verdict.  Although some of Walker’s claims were dismissed, the jury found that Verizon had committed age discrimination against Walker and had retaliated against her for taking FMLA leave in 2013.  The jury awarded $188,000 in damages in Walker’s favor for back pay (and $10,000 on that age discrimination claim).  We’ll get to the rest of that $800,000 judgment in a bit.

The ruling.  The court affirmed the jury verdict and added other damages that are within the court’s province (see table below).  In its opinion affirming the jury verdict, the court recognized that Magee didn’t really conduct a rate and rank to reach his decision to select Walker for termination.  However, in the fake 2015 rate and rank form, Magee wrote that Walker was slow to learn her job responsibilities in 2013.  The judge stated that a jury could reasonably infer from this that Magee decided to fire Walker in 2015 because she hadn’t learned quickly enough in 2013 due to her FMLA time off.  The judge also stated the jury could believe that Magee’s comments on the rate and rank form were evidence of the reasons he had in mind in selecting Walker for termination.

Insights from the winning trial attorney.  Curious about this case, your intrepid reporter spoke with Christine E. Burke (Karpf Karpf & Cerutti), the attorney who represented Walker.  One fact of particular interest to me was that Verizon’s retaliation (the layoff) took place two years after Walker’s FMLA leave. Usually, the protected FMLA leave and the act of retaliation occur much closer together, making it easier to infer the retaliation.  Ms. Burke explained that because the rate and rank only required a 2-year performance look back, the 2013 “Developing” evaluation took on greater significance than her other 30+ years of good performance – thus allowing Magee to jerry-rig the rate and rank to achieve his desired outcome.

Ms. Burke also explained that the jury was swayed by the lack of fairness in Magee’s supposed rate and rank.  Not only did Magee’s 2013 evaluation work to Walker’s detriment, but Magee did not follow the company’s rules.  His failure to charge the other employee with a 3-point deduction for the PIP probably just stunk to the jury.

Finally, and perhaps most important, Ms. Burke acknowledged that the case would probably not have made it to a jury – meaning never filed, or dismissed by the court pre-trial – but for that comment in Walker’s 2013 mid-year evaluation:  “Suzette has missed time due to an injury, which has made the transition difficult.”

How much?  So how big was the judgment in favor of Suzette Walker?  Here is rundown of the types damages that can be awarded in an FMLA case and the amounts awarded to Walker:

 

FMLA DAMAGES ITEM DESCRIPTION AMOUNT
Back pay Common award in termination case – lost wages up to date of judgment $188,000

 

Front pay Awarded if employee has not yet become re-employed at time of judgment – lost wages looking forward $256,000

 

Pre-judgment interest – on back pay only Always awarded if back pay is awarded, at the “prevailing rate” $6,001

 

Liquidated damages** Similar to punitive damages – equal to amount of back pay plus pre-judgment interest (see **below) $194,001

 

Plaintiff’s attorney’s fees Employer pays if employee wins $153,356
Plaintiff’s costs Employer pays if employee wins $6,213
TOTAL FMLA AWARD TO PLAINTIFF   $ 803,571
Employer’s estimated attorney’s fees and costs

 

Employer always pays (and is usually larger than employee’s attorney’s fees) $ 160,000 est.
TOTAL COSTS TO VERIZON

 

  $963,571

** Liquidated damages are routinely awarded in FMLA cases.  The employer can avoid liquidated damages only if it proves that it had a good faith belief that its act or omission was not a violation of the FMLA.  An explanation for the employer’s actions is not enough; the employer must also prove it took affirmative steps to ascertain the requirements of and comply with the FMLA in the particular situation.  As the Walker court ruled in awarding liquidated damages against Verizon:

The court must award liquidated damages unless the employer proves to the satisfaction of the court that the act or omission which violated the FMLA was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of” the FMLA.

This, Verizon was unable to do.

Pings for Employers

   We sound like a broken record, but you must TRAIN YOUR SUPERVISORS AND MANAGERS on employee rights and employer obligations under the FMLA. Without that ill-advised comment in Suzette Walker’s 2013 mid-year review, Verizon might have succeeded in defeating her FMLA claim.

Training might also have enabled Verizon to avoid the liquidated damages by being able to show a good faith effort to educate its supervisors on employee rights and employer obligations under the FMLA.

In all your processes, treat employees who have taken or are taking FMLA leave consistently with employees who have not.

    Follow your established procedures when applying discipline, assessing layoff, or otherwise affecting the employment of an employee who has taken or is taking FMLA leave.

 

Walker v. Verizon Pennsylvania, LLC (E.D.Pa. August 25, 2017)

Hawaii adds siblings as a covered relationship for family leave

Posted on: July 13, 2017 0

By Marti Cardi, VP-Product Compliance

& Gail Cohen, Director-Employment Law/Compliance

 

On July 10, 2017, the governor of Hawaii signed an amendment to the state’s family leave law, adding siblings as a family member for whom an employee can take leave.  The amendment took effect immediately.

Under the Hawaii law, employees who have worked for an employer for at least 6 consecutive months are entitled to 4 weeks of unpaid, job-protected leave per 12-month period:

 

  • To bond with a newborn biological child or newly adopted child (a newly placed foster child is not covered); and
  • To care for the employee’s child, spouse, reciprocal beneficiary, sibling, or parent with a serious health condition.

The terms “child” and “parent” are defined broadly by the Hawaii statute for the purpose of caring for a family member with a serious health condition:

  • Child: biological, adopted, or foster son or daughter, a stepchild, or a legal ward of an employee.
  • Parent: biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, a grandparent, or a grandparent-in-law.

Employers with 100 or more employees must comply with the law.

The Hawaii family leave law does not provide leave for an employee’s own serious health condition.  However, the state does have a pregnancy disability leave law; temporary disability benefits for up to 26 weeks per year through an employee/employer funded state program; and leave to donate an organ, bone marrow, or peripheral blood stem cells.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

High Points in Recent FMLA Case Law

Posted on: May 11, 2017 1

By Marti Cardi, VP-Product Compliance

 

Last week I had the distinct pleasure of co-presenting one of the opening general sessions at the Disability Management Employer Coalition Compliance Conference with my buddy and fellow blogger, Jeff Nowak. Those of you who know Jeff and me will understand sharing the stage with him is tough duty: He’s cuter, funnier, and a better singer than me! Nonetheless, I soldiered through and together we provided updates on key FMLA cases decided by the courts in the past 12 months or so. Although there were no headline-making court decisions (think Escriba v. Foster Poultry Farms from a couple of years ago) there is still plenty to learn, and important reminders to gain, from recent FMLA cases. Here are some highlights:

Year of the Third Party Administrator. (Jeff’s title, not mine.) The past few months brought us a spate of cases dealing with an employer’s ability to require employees to provide notice of FMLA leave to both the employer and the employer’s third party administrator. For example, you can require your employees to call one number to report the absence for operational and attendance purposes, and another number (like Matrix!) to comply with and benefit from FMLA processes and protections. The key is to ensure that your employees are aware of the required two-notice process.

What employers should do: Enact a policy and distribute it to your employees spelling out the two-notice requirement, providing both numbers, and – while you’re at it – include time limits within which employees must report to each number. Some of the cases: Scales v. FedEx Ground Package Sys. (N.D. Ill. Jan. 2017); Alexander v. Kellogg USA, Inc. (6th Cir. Jan. 2017); Perry v. American Red Cross (6th Cir. 2016)

Employer’s duty to inquire for more information. The FMLA regulations provide that if an employer is on notice of an employee’s possible need for FMLA leave, the employer has the duty to ask for further information if needed to determine whether the employee’s leave request is for an FMLA-qualifying reason. 29 C.F.R. § 825.3(c); 825.303(b). This rule came up in two different contexts in recent cases.

In Reeder v. County of Wayne (E.D.Mich. Apr. 2016), employee Yasin provided a doctor’s note that identified his health conditions, stated he was under treatment, and directed that he should not work more than 8 hours per day – and thus no overtime (which was frequently required to ensure security at the county jail where he worked). The County did not provide Yasin with an FMLA certification form or a notice of rights and responsibilities. After missing many overtime shifts and receiving discipline, Yasin was terminated. The court ruled that a jury could find the information in the doctor’s note sufficient to put the County on notice that Yasin might need FMLA leave, thus giving rise to the County’s duty to inquire further if it needed more information.

EPILOGUE: The case indeed went to a jury that found the County had interfered with Yasin’s FMLA rights. He won over $187,000 in damages, $125,000 in attorneys’ fees, interest, and costs for a total in excess of $325,000.

Coutard v. Municipal Credit Union (2d Cir. Feb. 2017) reinforces the employer’s duty to inquire but this time in a situation that might surprise employers. Frantz Courtard asked for a leave of absence to care for his grandfather. MCU summarily denied the leave request, stating that the FMLA does not cover leave for grandfathers. Frantz took time off anyway due to his grandfather’s need for home care following hospitalization. Frantz was terminated for unexcused absences. Turns out, Frantz‘s grandfather had cared for him from age 4 when Frantz’s father died to age 14, providing a home, food, clothing, schooling, and other support typical of a parent – in short, a classic in loco parentis relationship. MCU argued that Frantz should have volunteered the information to establish the in loco parentis relationship. The court disagreed, holding instead that MCU had a duty to inquire whether Frantz’s grandfather qualified as ILP. Thus, Frantz’s termination constituted interference with his FMLA rights.

What employers should do: Always follow up with an employee if he or she provides information that a leave request might qualify under the FMLA, depending on additional facts. The regulations clearly state that merely “calling in sick” is not enough, but beyond that (and maybe even in that situation, depending on other facts) you should ask informally for more information to assess whether you should initiate the FMLA notice certification process. You will still be able to deny FMLA protections if the certification does not support the leave under the FMLA.

Beware the FMLA mandatory overtime rules! They can get you coming and going, as tire maker Bridgestone learned. Under Bridgestone’s overtime process, workers were not required to sign up for overtime, but if an employee did sign up and was selected for an OT shift, the employee had to work the assigned shift or be assessed an attendance violation. Employee Lucas was approved for intermittent leave to care for his son, who had asthma. Over time Lucas missed many OT shifts he had signed up for. Bridgestone applied FMLA to excuse most of the missed shifts, but ultimately Lucas exhausted his FMLA and was terminated for attendance violations.

The questions before the court included whether the OT shifts were mandatory, and whether Bridgestone had properly accounted for those shifts under the FMLA. Lucas argued the shifts were not mandatory because an employee could choose to sign up; as a result, they should not have been counted against his FMLA usage – and hence, he would not have exhausted his FMLA. Bridgestone countered that the shifts were mandatory once the employee signed up and was selected for a shift; as a result, Bridgestone argued, it was correct in deducting FMLA hours for the mandatory OT shifts Lucas missed to care for his son.

The court agreed that the shifts were mandatory due to Bridgestone’s OT sign-up, selection, and discipline process. But, Bridgestone had it only half right: The company was in compliance with the FMLA regulations when it deducted missed OT shifts from Lucas’s FMLA entitlement, but the company should also have included Lucas’s mandatory OT hours in its calculation of his “workweek” for FMLA purposes, using the variable workweek method permitted by the regulations. 29 C.F.R. § 825.205(b)(3). By failing to do so Bridgestone shorted Lucas on entitlement. Hernandez v. Bridgestone (8th Cir. Aug. 2016).

Lesson learned: Mandatory overtime counts toward both FMLA entitlement and FMLA usage.

Certification from a treating specialist? Maybe yes. Good news! A court has approved an employer’s request for an initial certification from a treating specialist. Erica was a difficult employee, to say the least. Her many complaints and ultimate termination landed her employer, City of Milford, in court. Lucky us! Erica’s groundless FMLA claims yielded a court ruling that is good news for employers. Erica was a community outreach employee for the City and requested FMLA leave for severe anxiety. She provided an FMLA certification from her primary care provider, who indicated that she was under treatment with a psychiatrist. The City asked for a new certification from the treating psychiatrist, which Erica provided. She received all the leave she requested but later – lots going on in the background, folks – she was fired. She sued and claimed, among many other things, that the City’s requirement that she provide a certification from her specialist was FMLA interference. Au contraire, said the court. Under these facts (a treating specialist referenced on the provider’s certification) the employer was justified in asking for a cert from that specialist.

But there are limits to how far we can rely upon this court decision. If the initial certification does not reference treatment by a specialist, a court may not be as willing to support an employer’s request for a certification from a specialist. After all, who would that specialist be if the employee is not treating? This is a reminder of the advantages of reviewing an employee’s initial certification carefully. The DOL prototype forms have questions to identify whether the employee/patient is receiving treatment from any other provider (WH-380-E and 380-F):

Was the patient referred to other health care provider(s) for evaluation or treatment (e.g., physical therapist)? ____No ____Yes. If so, state the nature of such treatments and expected duration of treatment: ___________________________________.

If the form is blank in this regard, follow the incomplete process spelled out in the regulations. If the form is filled in and indicates no other treatment, the second/third opinion process may be appropriate because the employee’s provider has given a certification on a specialty condition not within his/her practice. Either way, the employer ends up with more precise information about the employee’s need for leave – always a good thing!

The FMLA continues to be a challenge for employers – there seems to be no end to the fact situations employers face in managing employee leaves. If you have questions about the cases above other leave management issues, please contact us for help.

MATRIX CAN HELP!

Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

 

ADA Views – Direct from the EEOC!

Posted on: May 8, 2017 0

By Gail Cohen, Director-Employment Law/Compliance

& Marti Cardi, VP-Product Compliance

 

Q:   What do attendance, a deaf lifeguard, and an “accidental leave law” have in common?

A:    They are all topics addressed by an EEOC representative at Matrix’s recent Client Advisory Board meeting.

Pierce Blue is Attorney-Advisor to EEOC Commissioner Chai Feldblum.  We invited Pierce to a meeting of a cross-section of our clients to talk all things ADA – that’s the Americans with Disabilities Act, of course.  Here are a few snippets of information Pierce shared with attendees:

Attendance – is it an essential function of a job? The EEOC says no, in most cases.  In the EEOC’s view, an essential function is a key outcome or task. Attendance is not usually the “task” an employee needs to accomplish in the job, hence it is not an essential function.  (Exceptions might include a receptionist or a security guard where physical presence is one of the expected outcomes.)  Pierce noted that courts have disagreed with the EEOC on this point and have held that attendance can be an essential function.  See, for example, EEOC v. Ford Motor Co. (6th Cir. 2015)  (regular and predictable on-site job attendance was both an essential function of, and a prerequisite to perform other essential functions of, the employee’s job; due to her repeated absences, she was not qualified for her position).
Reduced Schedules. Ever have an employee who asked for no overtime, intermittent leave or reduced schedule as an accommodation?   Is this a reasonable accommodation that an employer must consider?  The EEOC say yes, in most cases.  But how does this square with the EEOC’s own pronouncement that an employer does not have to lower production quality or quantity standards as an accommodation?  Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA.   Pierce explained the EEOC wants to see employers have the interactive discussion with the employee, address job performance expectations, and perhaps give the employee’s request a trial.  As a benefit, a trial run will put the employer in a defensible position if the accommodation is later withdrawn because it simply isn’t working – the employee is not getting her work assignments done while avoiding mandatory overtime or taking intermittent leave.

Don’t act on unfounded fear and speculation. This brings us to the lesson learned from the Case of the Deaf Lifeguard.  A typical initial reaction to this scenario is that, of course, a deaf person cannot be a lifeguard.  Pierce discussed the case to remind employers not to act on unfounded assumptions and stereotypes.  Rather, the ADA requires an individualized assessment of a disabled employee’s ability to perform the essential functions of the position.

Keith, the lifeguard, has been deaf since birth.  He took and passed a lifeguard certification program and Oakland County’s water safety test and lifeguard training program.   The County offered Keith a lifeguard position contingent upon the County’s usual requirement of passing a medical examination.  The doctor who conducted the physical expressed concern about Keith’s ability to perform the job due to his hearing impairment, and the County withdrew the job offer.  In court (yes, he sued!) Keith argued that the County failed to conduct an individualized assessment of his ability to perform the essential functions of the lifeguard position.  The 6th Circuit agreed.  The examining doctor had merely looked at Keith’s file and declared, “He’s deaf; he can’t be a lifeguard.”  No one for the County asked Keith to demonstrate performance of the job or otherwise made an individualized assessment of his lifeguard abilities.  Keith, on the other hand, had experts in deaf lifeguards and aquatic safety willing to testify that a deaf person can perform the functions of a lifeguard position.  The experts explained that persons in danger exhibit visual signs of distress, and individuals deaf since birth have better peripheral vision than hearing persons.  According to the court, the doctor’s “cursory medical examination is precisely the type that the ADA was designed to prohibit.”  Keith v. County of Oakland (6th Cir. 2013).

Accidental leave law. Pierce shared thoughts from Acting Chair of the EEOC, Victoria Lipnic, about leave of absence as a reasonable accommodation under the ADA.  Pierce explained that Acting Chair Lipnic – and others – call the ADA an “accidental leave law.”  The basic intent of the law is to keep employees working, not to provide leaves of absence.  In Acting Chair Lipnic’s view, Congress passed a separate law – our beloved FMLA – to address leaves of absence, while the ADA has a separate purpose:  to prevent disability discrimination and help disabled individuals obtain and keep jobs.  Well, we’ve come a long way, haven’t we?  For more guidance on leave as an ADA accommodation, see the EEOC’s 2016 resource document, Employer-Provided Leave and the Americans with Disabilities Act.

The topics addressed by Pierce at our client meeting present significant ADA challenges for employers.  Please let Matrix know if you would like to learn more about any of these topics or others relating to leaves of absence and accommodations.  You can leave a message below or contact marti.cardi@matrixcos.com.

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Employee Reports FMLA for One Workday in the Middle of Vacation

Posted on: November 16, 2016 0

By Marti Cardi, VP Product Compliance

Plaintiff Masoud Sharif and his wife were employed by United Airlines at the Dulles Airport in Washington, D.C.  He and his wife took vacation to South Africa from March 16 to April 4, 2014.  Mr. Sharif, however, was scheduled to work on March 30 and 31. He was able to get a co-worker to cover his shift on the 31st, but was not able to get coverage for his shift on the 30th.

Sharif suffered from anxiety and panic attacks and had previously been approved by United to take intermittent FMLA for his condition.  On March 30 he called in to report FMLA for that day.  HR noticed that he had reported FMLA for his only scheduled workday during an extended vacation period and launched an investigation.  Sharif was interviewed and gave conflicting explanations – at one point claiming he did not think he had to work that day, then claiming he could not locate a flight home in time for his shift, though he and his wife flew to visit a niece in Milan from March 31 until April 4.

As a result of these conflicting explanations, United notified Sharif of its intent to discharge him from employment for fraudulent use of FMLA and violating a United policy requiring truthfulness in communications. As a union employee, he was entitled to a hearing, but when the union advised him he would be unlikely to prevail, he elected to retire.

Sharif then sued United, claiming the airline fired him in retaliation for taking FMLA leave.  According to the 4th Circuit, the facts developed as follows:

  • At 7:00 a.m. Cape Town Time (1:00 a.m. Eastern Standard Time) on March 30—the day of his scheduled shift—Sharif called United Airlines to take medical leave under the FMLA.
  • He had not made any advance reservations for a return flight.
  • The next day, Sharif and his wife flew from Cape Town to Milan, Italy, where Sharif’s niece lived.
  • On April 3, Sharif and his wife finally departed for Washington and arrived just in time for his wife’s next shift.
  • On April 23, 2014, United representatives interviewed Sharif with a union representative present. When asked about his vacation and March 30 absence, Sharif sat in silence for a period of minutes before he gave a series of inconsistent answers.
  • Sharif first replied that he was not scheduled to work on March 30, and when asked why he had taken FMLA leave if he did not have a shift, Sharif responded that he “d[id] not recall being out sick this day or calling out sick.”
  • After another pause, Sharif clarified that he began trying to return home flying standby (as airline employees often do) beginning March 29 but was unable to find any available flights.
  • Sharif’s story later evolved to claim he actually arrived at the airport on March 28 to begin looking for a flight, and that he and his wife obtained the additional days off in April to gather with family in Pittsburg for the Persian New Year.
  • As a result of his repeated unsuccessful attempts to find any means to return to Washington in time for his shift, Sharif explained that he grew anxious and was eventually seized by a panic attack which then led to his use of FMLA leave.

The district court had granted summary judgment in favor of the airline – meaning United won and the case would not go to a jury trial.  The 4th Circuit agreed with the district court and affirmed summary judgment for United.   In particular, the court emphasized that Sharif had to prove that United’s explanation for its determination that he had violated its policies and that his conducted warranted termination was a pretext for retaliating against him for taking leave.  Sharif failed to present sufficient evidence, and quite to the contrary, the evidence supported that United had “ample reason to believe it had been lied to,” citing to the FMLA regs. “An employee who fraudulently obtains FMLA leave from an employer is not protected by the FMLA’s . . . provisions.”  29 C.F.R. § 825.216(d).

Sharif v. United Airlines, __ F.3d ___, 2016 WL6407391 (4th Cir. Oct.31, 2016).

PINGPings for Employers: The FMLA offers a few tools for employers to curb suspected abuses, including prompt action to investigate to support the suspicion of improper FMLA usage. United did a number of things well, beginning with noticing there was an issue. When someone reports leave in the middle of pre-planned vacation, that is understandably cause, at a minimum, for inquiry. Also:

  • United kept to the facts. They did not draw conclusions, but rather, asked Sharif to provide an explanation in interviews and invited him to submit a written statement;
  • The airline did not take adverse employment action until they had the objective facts to support that not only did Sharif report FMLA on a day that did not appear to be for a covered reason; and
  • United also pursued Sharif’s violation of the Company’s policies governing dishonesty – a reason for termination independent of FMLA usage (although the dishonesty related to FMLA usage). This kind of policy should be part of every employer’s code of conduct.

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations.  We are experts on ways to minimize FMLA misuse and can help your company implement practices that will achieve this goal.

We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.