December 28, 2021

When the Cat’s (Paw is) Out of the Bag: An FMLA Reminder

The facts of this case are not, for the most part, in dispute. The employee took FMLA leave for three days. Within two weeks, her director and another manager issued a corrective action notice for the way she handled an employee relations issue.  On that same day, she left work early and took FMLA leave. She returned to work six (6) days later. The day she returned to work, she was counseled again about the previous incident and placed on a performance improvement plan by two other directors.

Two days later, the regional director removed the employee from the client’s account, placed her on a 30-day leave of absence, and invited her to apply for another opportunity within any of the company’s four divisions.  When she failed to do so, the regional director discharged her.

  1. The court found the Regional Director had no knowledge that the employee had taken any FMLA leave.
  2. The court found that his only knowledge about the employee’s alleged unsatisfactory conduct and performance came from the managers who did know about her FMLA leave.
  3. The court found sufficient evidence that at least two of those managers may have had some motive to retaliate against the employee for her use of FMLA leave – emailing that she had abandoned her job and they had to work to cover her shift.


Lessons Learned.

Employee-Plaintiff’s Burden of Proof.  How easy is it for an employee to sue, you ask?  The court reminds us that the (former) employee has a “low bar” and must offer only “minimally sufficient” evidence of an FMLA violation.

Issue Timely FMLA Notices. While it was not an issue in his case, the court reminds us that an employer violates the FMLA if an employee an show the employee “would have structured her leave differently if she had received timely notice of her rights of FMLA leave.”  Be sure you are issuing the FMLA Notice of Eligibility, Rights and Responsibilities, and Designation timely!

Joint employer liability. The employee was employed by a company that was a wholly owned subsidiary of another. Both were named as defendants. Both were held legally liable.

Individual liability. Get it right to keep yourself safe. The employee named her supervisor and another employee as defendants in this lawsuit.

Want more FMLA tips and informationClick here for last month’s webcast, “Forgive My Last Absence: An FMLA Update.” $25 pp. 75 minutes. HRCI & SHRM pre-approved for 1.25 credits.