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Employers Must Notify Workers When Leave
Is Counted Against FMLA Entitlement
By Carrie Hoffman
Under the FMLA, once an
employer knows that an employee is taking leave for an
FMLA required reason, the employer must give the
employee individualized notice that the leave will be
counted against the employee’s FMLA entitlement. Several
years ago, the Supreme Court invalidated a regulation
that required employers to provide additional leave if
they did not comply with the notice requirements in
certain circumstances. Recent cases emphasize the part
of that opinion the employers, including retailers,
often ignore, that if the employee can show harm from
the failure to provide notice, the failure to provide
appropriate notice is violation of the FMLA.
In 2002, the Supreme
Court decided Ragsdale v. Wolverine World Wide,
Inc., which involved an employee who took leave for
medical treatments without notice from the employer that
such leave would count against her FMLA entitlement.
When the employee’s condition persisted, thus requiring
her to take additional leave, she was terminated. The
employee sued the employer, alleging she was entitled to
leave under the FMLA pursuant to the FMLA penalty
regulation, which stipulated that leave not specifically
designated by the employer as FMLA leave would not count
against the employee’s FMLA entitlement. The Supreme
Court, however, struck down the penalty regulation
because it would relieve employees from their burden of
proving they suffered actual harm as a result of the
employer’s failure to designate leave under the FMLA.
In the recent case of
Downey v. Strain, the Fifth Circuit Court of
Appeals found Ragsdale to be instructive.
Ultimately, Downey illustrates that the
Ragsdale holding has teeth—an FMLA claim exists
where an employer fails to give individualized notice
and the employee can prove harm. Downey involved a
female employee who took FMLA leave after proper notice
from the employer to the employee. In that leave, the
employee used 424 hours of her FMLA allowance, leaving
50+ hours of leave time for the remainder of the year.
Within months of her return, the employee again
requested FMLA leave for a surgery. The employer charged
the employee with FMLA leave for this period without
providing notice to the employee of that fact. During
the second leave, the employee exhausted her FMLA
entitlement. Upon returning to work, the employee was
reassigned to a different position that did not have
equivalent pay and benefits. The employee brought a
lawsuit alleging that the employer interfered with her
rights under the FMLA when he failed to provide her with
individualized notice that her leave would be counted
against her FMLA hours.
The court found that
there was a violation of the FMLA because the employee
proved she was harmed by the failure to provide notice.
Retailers must be
especially careful concerning FMLA issues. Oftentimes,
the store’s ultimate manager knows of the need and
reason for leave but fails to properly notify Human
Resources. This results in the retailer failing to
provide notice as required. If the employee can show
harm from the failure to provide notice that the leave
counts against the employee’s annual FMLA entitlement, a
violation of the FMLA occurs. Retailers must ensure that
its managers receive proper training on the FMLA and
understand the need to partner with Human Resources on
all leave issues.
Carrie Hoffman is a partner at
Gardere and a member of the Retail Industry Team where
her practice focuses on complex commercial litigation,
principally in the areas of intellectual property,
computer technology, antitrust and class actions. Please
email
Carrie if you have questions or would like more
information about this article.
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