April 27, 2026
Stay the Course if You Outsource! FMLA Blunders
Outsourcing one or more HR functions, or the entire department can certainly have its advantages. Like everything, it also has its risks. This is not the first time a court found an employer’s FMLA process to be so difficult to navigate it constituted unlawful interference and/or retaliation.
In this case, an employer outsourced the administration of FMLA leave to a third-party administrator (TPA). The employer instructed the employee to report his FMLA-covered absences to the TPA. After the employer issued corrective action for excessive absenteeism that included some of his FMLA-covered absences, there was a lot of back and forth. Thereafter, the employee was fired for excessive absenteeism, and he sued for unlawful FMLA interference and retaliation.
FMLA Interference Claim. The employee claimed he tried to contact the TPA on multiple occasions, but (1) it was “almost impossible to get ahold of anybody;” (2) he was frequently disconnected from a call;” and (3) if he was still on hold at 5p.m. “they just hung up on everybody.” The court found, “a jury could find that [the TPA]’s system for addressing FMLA requests created a ‘burdensome approval process’ that interfered with…taking FMLA leave.”
FMLA Retaliation Claim. The court noted that the employer’s “Field HR person” (1) was aware the employee had issues with his FMLA leave, yet she did not speak with him about them before recommending his termination; and (2) alleged the employee had been intentionally dishonest in his FMLA reporting but she never discussed those with the employee prior to his termination. As a result, the court found a reasonable jury could conclude that there was a causal connection between the employee’s use of FMLA leave and his discharge.
Lesson learned? Ensure your processes and procedures are user-friendly and not cumbersome. Remember to get an employee’s side of the story before you make your final decision regarding an adverse employment action.
Tip. Have you tried your own systems lately? If not, consider doing so. How easy is it to navigate your call-in or leave request procedure? What about your employment application process? Consider the various ways to ask or require individuals to engage with your company and how you can enhance that process.
One last note. The employee also testified that he was “shocked” when he was fired. Before you take an adverse employment action, whether it is firing, demoting, issuing a poor performance appraisal, etc., ask yourself if you think the employee will be surprised. A surprised employee is usually not a good thing to have. That can be avoided if you have coached, counseled, and given written notice of any deficiencies in advance.
