Congress enacted the FMLA to "balance the demands of the workplace with the needs of families." 29 U.S.C. § 2601(b)(1). The FMLA provides that "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:" (1) "a serious health condition that makes the employee unable to perform the functions of the position of such employee" or (2) "to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." 29 U.S.C. § 2612(a)(1). An employee on FMLA leave must be reinstated to the position she held before they took FMLA leave. 29 U.S.C. § 2614(a). The FMLA prohibits employers from retaliating against employees who exercise or attempt to exercise their rights under the FMLA, 29 U.S.C. § 2615(a), and employers who violate the FMLA are subject to damages and equitable relief, 29 U.S.C. § 2617(a)(1)(A)-(B). Paylor v. Hartford Fire Ins. Co., 748 F. 3d 1117 (11th Cir. 2014).
The FMLA creates a cause of action for interference with the rights it bestows. Employees can sue for interference with the exercise of FMLA rights under 29 U.S.C. § 2615(a)(1). They can also sue under 29 U.S.C. § 2615(a)(2), if an employer retaliates against an employee for exercising her FMLA rights. See Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir.2009) ("[F]iring an employee for a valid request for FMLA leave may constitute interference with the employee's FMLA rights as well as retaliation against the employee."). Lupyan v. Corinthian Colleges, Inc., 761 F. 3d 314 (3rd Cir. 2014).
The FMLA requires employers to provide employees with both general and individual notice about the FMLA. To meet the general notice requirements, an employer must post a notice of FMLA rights on its premises. See § 2619(a). Because employers have some discretion in the way FMLA policies are implemented, employers must also include information regarding the employer's FMLA policies in a handbook or similar publication. See 29 CFR § 825.300. Lupyan v. Corinthian Colleges, Inc., ibid.
In addition, regulations issued by the Department of Labor require that an employer give employees individual written notice that an absence falls under the FMLA, and is therefore governed by it. 29 CFR § 825.208; Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 142 (3d Cir.2004) ("the regulations require employers to provide employees with individualized notice of their FMLA rights and obligations."). Thus, once an employer is on notice that an employee is taking FMLA-qualifying leave, the employer must: (1) within five business days notify the employee of his or her eligibility to take FMLA leave, 29 C.F.R. § 825.300(b)(1); (2) notify the employee in writing whether the leave will be designated as FMLA leave, 29 C.F.R. § 825.300(d)(1); (3) provide written notice detailing the employee's obligations under the FMLA and explaining any consequences for failing to meet those obligations, § 825.300(c)(1); and (4) notify the employee of the specific amount of leave that will be counted against the employee's FMLA leave entitlement, § 825.300(d)(6). Lupyan v. Corinthian Colleges, Inc., ibid.
The FMLA prohibits employers from discriminating or 'retaliating' against an employee for asserting her rights under the Act. Therefore, an employer may not consider an employee's use of FMLA leave as a negative factor in an employment action. (Citations omitted.) "Basing an adverse employment action on an employee's use of leave . . . is therefore actionable." Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002). And "[a]n employee making this type of claim must prove that the employer was motivated by the employee's exercise of rights under the FMLA." Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1006 (8th Cir. 2012). "An employee can prove retaliation through circumstantial evidence, using the McDonnell Douglas burden-shifting analysis." Hite, 446 F.3d at 865. However, "[w]hen the parties have developed a full trial record. . . . the McDonnell Douglas presumptions fade away, and the appellate court should simply study the record with a view to determining whether the evidence is sufficient to support whatever finding was made at trial." Id. (alteration in original) (internal quotation marks and citation omitted). Jackson v. City of Hot Springs, (8th Cir. 2014).
THIS CASEBOOK contains a selection of 37 U. S. Court of Appeals decisions that analyze and interpret provisions of the Family Medical Leave Act. The selection of decisions spans from 2010 to the date of publication.