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THINGS THAT TRIBES

SHOULD KNOW ABOUT THE

FMLA

Sheryl J. Willert

WILLIAMS, KASTNER & GIBBS PLLC

Tribal Employment Law Seminar

April 21, 2006

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TABLE OF CONTENTS

PAGE

I. OVERVIEW OF FMLA.................................................................................................... 1

II. ELIGIBILITY.................................................................................................................... 2

A. Maintenance of Health Benefits............................................................................. 3 B. Unlawful Acts ........................................................................................................ 4 C. Enforcement........................................................................................................... 4

III. SERIOUS HEALTH CONDITIONS ................................................................................ 8

IV. MEDICAL CERTIFICATIONS...................................................................................... 11

V. NOTICE........................................................................................................................... 15

A. Providing Notice to Employees. .......................................................................... 15 B. Employee Notice to Employer............................................................................. 16

VI. RETURN TO WORK ISSUES........................................................................................ 23

VII. RETROACTIVE DESIGNATION OF LEAVE ISSUES ............................................... 24

VIII. ABILITY TO DISCIPLINE AND TERMINATE........................................................... 25

IX. EQUIVALENT POSITION............................................................................................. 32

X. OTHER RELATED ISSUES........................................................................................... 34

A. Eleventh Amendment Immunity.......................................................................... 34 B. Statute of Limitations........................................................................................... 37 C. Military Leave...................................................................................................... 38

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TABLE OF AUTHORITIES

PAGE Cases

Abrams v. Millikin & Fitton Law Firm, 267 F. Supp. 2d 868 (S.D. Ohio 2003) ..................................................................................... 29

Bailey v. Southwest Gas Co., 275 F.3d 1181 (9th Cir. 2002) .................................................................................................. 13

Blackburn v. Potter, 2003 U.S. Dist. LEXIS 5269 (S.D. Ind. March 31, 2003)................................................. 10, 22

Brenlla v. LaSorsa Buick Pontiac Chevrolet, Inc., 2002 U.S. Dist. LEXIS 9358 (S.D.N.Y. May 28, 2002) .......................................................... 30

Byrne v. Avon Prods., Inc., 328 F.3d 379 (7th Cir. May 9, 2003) ........................................................................................ 19

Camp v. Soo Line R.R. Co., 2003 U.S. Dist. LEXIS 2711 (D. Minn. Feb. 20, 2003) ........................................................... 29

Carlson v. Rent-A-Center, Inc., 237 F. Supp. 2d 114 (D. Me. January 14, 2003)................................................................... 5, 32

Chandler v. Specialty Tires of Am. (Tenn.), Inc., 283 F.3d 818 (6th Cir. 2002) .................................................................................................... 27

Chittister v. Deptment of Community & Econ. Dev., 226 F.3d 223 (3d Cir. 2000)...................................................................................................... 34

Connel v. Hallmark Cards, Inc., 2002 U.S. Dist. LEXIS 1945 (D. Kan. Feb. 1, 2002) ............................................................... 31

Detels v. Farmers Ins. Exch., 2002 Cal. Unpub. LEXIS 11942 (Cal. Ct. App. 2002)............................................................ 11

Dierlam v. Wesley Jessen Corp., 222 F. Supp. 2d 1052 (N.D. Ill. 2002) ................................................................................. 7, 34

Dodaro v. Village of Glendale Heights, 2003 U.S. Dist. LEXIS 5056 (N.D. Ill. March 31, 2003) ........................................................ 21

Doe v. United States Postal Serv., 317 F.3d 339 (2003).................................................................................................................. 14

Dowell v. Indiana Heart Physicians, Inc, 2004 U.S. District LEXIS 26433 (S.D. Ind. December 22, 2004)............................................ 11

DuCharme v. Cape Indus., 2002 U.S. Dist. LEXIS 21926 (E.D. Mich. 2002) .................................................................... 10

EEOC v. Fond du Lac Heavy Equip. & Constr. Co., Inc., 986 F.2d 246 (8th Cir. 1993) ...................................................................................................... 1

Electrolux Home Prods. v. The United Automobile Aerospace and Agricultural Implement Workers of Am., 416 F.3d 848 (8th Cir. 2005) .................................................................................................... 15

Farina v. Compuware Corp., 256 F. Supp. 2d 1033 (D. Ariz. 2003) ..................................................................................... 20

Faris v. Williams WPC-I, Inc., 332 F.3d 316 (5th Cir. Tex. 2003) ........................................................................................ 7, 32

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Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U. S. 99 (1960)..................................................................................................................... 1

Fields v. Virginia, 2003 U.S. Dist. LEXIS 10107 (W.D. Va. June 16, 2003) ........................................................ 37

Fioto v. Manhattan Woods Golf Enters., LLC, 270 F. Supp. 2d 401 (S.D.N.Y. 2003)....................................................................................... 29

Garrett v. University of Ala. Bd. of Trustees, 193 F.3d 1214, 1220 (11th Cir. 1999) ...................................................................................... 34

Gonzalez v. City of Minneapolis, 267 F. Supp. 2d 1004 (D. Minn. 2003)..................................................................................... 30

Green v. New Balance Ath. Shoe, Inc., 182 F. Supp. 2d 128 (D. Me. 2002) .......................................................................................... 34

Grimsley v. Fiesta Salons, Inc., 2003 U.S. Dist. LEXIS 298 (E.D. Mich. Jan. 7, 2003)............................................................... 6

Hale v. Mann, 219 F.3d 61, 69 (2d Cir. 2000).................................................................................................. 34

Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333 (1977).................................................................................................................... 7

Jarjoura v. Ericsson, Inc., 266 F. Supp. 2d 519 (N.D. Tex. 2003) ..................................................................................... 30

Jarvis v. Gerstenslager Co., 2003 Ohio 3165 (Ohio Ct. App., Wayne County June 18, 2003)................................. 10, 15, 32

Johnson v. Honda of Am. Mfg., 221 F. Supp. 2d 853 (S.D. Ohio 2002) ................................................................................. 8, 30

Joseph Chayoon v. Elaine L. Chao, 355 F.3d 141 (2nd Cir 2004)....................................................................................................... 1

Junker v. Amana Co., L.P., 240 F. Supp. 2d 894 (N.D. Iowa 2003)..................................................................................... 23

Kamtaprassad v. Chase Manhattan Corp., 2001 U.S. Dist. LEXIS 21532 (S.D.N.Y. Dec. 28, 2001) ........................................................ 38

Kauffman v. Federal Express Corp., 2005 W.L. 2649978 (7th Cir. October, 2005)........................................................................... 15

Lapides v. Bd. of Regents, 122 S. Ct. 1640, 152 L. Ed. 2d 806, 535 U.S. 613 (2002).................................................. 36, 37

Laro v. New Hampshire, 259 F.3d 1, 11 (1st Cir. 2001)................................................................................................... 34

Lines v. City of Ottawa, 2003 U.S. Dist. LEXIS 10203 (D. Kan. June 16, 2003)........................................................... 14

Mathews v. Fairview Health Serv., 2003 U.S. Dist. LEXIS 5901 (D. Minn. April 7, 2003)...................................................... 15, 24

McBride v. Citgo Petroleum Corp., 281 F.3d 1099 (10th Cir. 2002) ................................................................................................ 28

McDaneld v. Eastern Municipal Water Dist. Bd., 109 Cal. App. 4th 702, 135 Cal. Rptr. 2d 267 (Cal. App. 4th Dist. 2003) ............................... 31

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) .............................................. 26

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Montgomery v. Maryland, 122 S. Ct. 1958, 152 L. Ed. 2d 1019, 533 U.S. 1075 (2002).............................................. 36, 37

N.Y. Metro Area Postal Union v. Potter, 2003 U.S. Dist. LEXIS 4904 (S.D.N.Y. March 31, 2003) ......................................................... 7

Nevada Dep’t of Human Res. v. Hibbs, 123 S. Ct. 1972 (2003).............................................................................................................. 35

Parker v. Hahnemann Univ. Hosp., 234 F. Supp. 2d 478 (D. N.J. 2002) .......................................................................................... 33

Parsons v. Orange County Sanitation Dist., 2003 Cal. App. Unpub. LEXIS 578 (2003) .............................................................................. 31

Peeples v. Coastal Office Prods., 2003 U.S. App. LEXIS 8644 (4th Cir. May 7, 2003) ......................................................... 15, 19

Pharakhone v. Nissan N. Am., Inc., 324 F.3d 405 (6th Cir. April 2, 2003) ....................................................................................... 27

Plumley v. Southern Container, Inc., 303 F.3d 364 (1st Cir. 2002)....................................................................................................... 5

Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002).............................................................................................. 1, 17, 20, 21, 25

Ruder v. Me. Gen. Med. Ctr., 204 F. Supp. 2d 16 (D. Me. 2002) .............................................................................................. 6

Sanders v. May Dep’t Stores Co., 315 F.3d 940 (8th Cir. Mo. 2003)............................................................................................ 20

Sharber v. Spirit Mountain Gaming Inc., 343 F.3d 974 (9th Cir. 2003) ...................................................................................................... 1

Siciliano v. Cambridge Home Health Care, Inc., 65 Fed. Appx. 542, 2003 U.S. App. LEXIS 10865 (6th Cir. 2003) ........................................... 4

Sims v. University of Cincinnati, 219 F.3d 559 (6th Cir. 2000) .................................................................................................... 34

Smith v. Allen Heath Sys., Inc., 302 F.3d 827 (8th Cir. Iowa 2002) ..................................................................................... 28, 29

Strykowski v. Rush N. Shore Med. Ctr., 2003 U.S. Dist. LEXIS 13206 (N.D. Ill. July 28, 2003)..................................................... 20, 32

Taylor v. Invacare, Corp., 2003 U.S. App. LEXIS 10318 (10th Cir. May 21, 2003) ......................................................... 18

Tomlinson v. Qualcomm, Inc., 97 Cal. App. 4th 934 (Cal. App. 4th Dist. 2002), rev. den., 2002 Cal. LEXIS 4577 (Cal. July 10, 2002)............................................................. 32

Townsel v. State, 233 F.3d 1094 (8th Cir. 2000) .................................................................................................. 34

U.S. v. Kagama, 118 U.S. 375 (1886).................................................................................................................... 1

Urban v. Dolgencorp of Tex., Inc., 2003 U.S. Dist. LEXIS 15334 (N.D. Tex. Aug. 6, 2003)................................................... 14, 32

VanMeveren v. Whirlpool Corp., 2003 U.S. App. LEXIS 10742 (10th Cir. May 29, 2003) ........................................................ 27

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Williams v. Lee, 358 U.S. 217 (1959).............................................................................................................. 1, 37

Worcester v. Georgia, 31 U.S. 515 (1832)...................................................................................................................... 1

Statutes

29 U.S.C. § 203(e)(2)(c) ............................................................................................................... 34 29 U.S.C. § 207............................................................................................................................... 5 29 U.S.C. § 207(e) .......................................................................................................................... 5 29 U.S.C. § 2601-2654 ................................................................................................................... 2 29 U.S.C. § 2611(2)(A)................................................................................................................... 6 29 U.S.C. § 2611(2)(B)(ii).............................................................................................................. 6 29 U.S.C. § 2611(3) ...................................................................................................................... 34 29 U.S.C. § 2611(4)(A)(i)............................................................................................................... 6 29 U.S.C. § 2612(a)(1).................................................................................................................... 5 29 U.S.C. § 2612(a)(1)(C) ............................................................................................................ 35 29 U.S.C. § 2612(a)(1)(D) ...................................................................................................... 35, 37 29 U.S.C. § 2613(b) ...................................................................................................................... 14 29 U.S.C. § 2615(a)(1).................................................................................................................. 29 29 U.S.C. § 2617..................................................................................................................... 17, 34 29 U.S.C. § 2619........................................................................................................................... 18 29 U.S.C. § 2654........................................................................................................................... 18 38 U.S.C.A. § 4301....................................................................................................................... 38 38 U.S.C.A. § 4330....................................................................................................................... 38 42 U.S.C. § 12112(d) .................................................................................................................... 14 42 U.S.C. § 1983........................................................................................................................... 36 42 U.S.C. §§ 12101-1223 ............................................................................................................... 1 5 U.S.C. § 552(a) .......................................................................................................................... 14 Regulations

29 C.F.R. § 825.107 ........................................................................................................................ 5 29 C.F.R. § 825.110 ........................................................................................................................ 7 29 C.F.R. § 825.110(a).................................................................................................................... 6 29 C.F.R. § 825.1112(g) ................................................................................................................. 9 29 C.F.R. § 825.114 ........................................................................................................................ 8 29 C.F.R. § 825.114(c).................................................................................................................. 10 29 C.F.R. § 825.200(b) ............................................................................................................. 2, 22 29 C.F.R. § 825.200(d) ................................................................................................................. 22 29 C.F.R. § 825.208(a)............................................................................................................ 17, 21 29 C.F.R. § 825.208(a)(2)............................................................................................................. 25 29 C.F.R. § 825.208(c).................................................................................................................. 21 29 C.F.R. § 825.208(e)(1)............................................................................................................. 25 29 C.F.R. § 825.214(a).................................................................................................................. 32 29 C.F.R. § 825.215(a).................................................................................................................. 32 29 C.F.R. § 825.216(a)(1)............................................................................................................. 33

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29 C.F.R. § 825.22(d). .................................................................................................................... 7 29 C.F.R. § 825.300(b) ................................................................................................................. 19 29 C.F.R. § 825.301(a).................................................................................................................. 16 29 C.F.R. § 825.301(c).................................................................................................................. 20 29 C.F.R. § 825.305(c).................................................................................................................. 11 29 C.F.R. § 825.306 ...................................................................................................................... 12 29 C.F.R. § 825.307(a).................................................................................................................. 14 29 C.F.R. § 825.309 ...................................................................................................................... 23 29 C.F.R. § 825.310 ...................................................................................................................... 23 29 C.F.R. § 825.311(c).................................................................................................................. 12 29 C.F.R. § 825.312(b) ................................................................................................................. 12 29 C.F.R. § 825.700(a).............................................................................................................. 1, 17

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FAMILY AND MEDICAL LEAVE ACT DEVELOPMENTS I. OVERVIEW OF FMLA

Ten Years with the FMLA February 5, 2003 marked ten years since the FMLA’s conception. In recent years the FMLA has given rise to an increasing number of disputes. Employees filed 25 percent more FMLA claims in 2002 than they had in 2001. DOL: Number of FMLA Complaints Filed, Damages Awarded, CURRENT DEVELOPMENTS (Family & Medical Leave Handbook), Feb. 2003 at 1, 3. During the same year juries awarded $3.73 million in money damages on FMLA claims, up 25 percent from the $2.98 million awarded in 2001. Id. Along with an increase in the number of claims comes a more thorough interpretation of the FMLA by courts, most significantly in the Supreme Court’s recent Hibbs and Ragsdale decisions. In response to some of the courts’ decisions and other uncertainties in the Department of Labor’s (DOL) regulations based on the FMLA, a change in the DOL’s regulations is forthcoming. Family and Medical Leave Act of 1993, 68 Fed. Reg. 1759 (May 27, 2003). The most likely changes will be in response to the Supreme Court’s ruling invalidating 29 C.F.R. § 825.700(a) in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002) (See Section “IV” below), but the DOL may also address other provisions. The following provides a general explanation of various elements of the FMLA and charts the FMLA’s development through recent case law. As independent political communities which possess the power to regulate t heir own internal social and internal affairs, Indian tribes are generally considered sovereign nations who hae a right to make their own laws and rules. See, Worcester v. Georgia, 31 U.S. 515 (1832), U.S. v. Kagama, 118 U.S. 375 (1886) and Williams v. Lee, 358 U.S. 217 (1959). Because the tribes are generally considered sovereign nations, the laws adopted by the United States Congress will not apply unless the laws are laws of general applicability. Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U. S. 99 (1960). However, the U. S. federal courts have articulated an exemption to this general rule where the law would interfere with tribal self-governance. Therefore, a decision about whether laws like the Family and Medical Leave Act (FMLA) apply to tribes must be made on a case by case basis. It is especially true that a decision will be made on a case by case since the FMLA fails to specifically exempt tribes from coverage. (It should be noted that several employment discrimination laws such as the Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(b) and the Americans with Disabilities Act (ADA) 42 U.S.C. §§ 12101-1223 specifically exclude tribes from coverage.) See, also EEOC v. Fond du Lac Heavy Equip. & Constr. Co., Inc., 986 F.2d 246 (8th Cir. 1993) which ruled that the Age Discrimination in Employment Act (ADEA) did not apply to tribes. The question of whether the FMLA applies to tribes has arisen in federal court on at least two (2) occasions. In each of those occasions, the federal courts have ruled that the decision about applicability had to be made based upon the facts of the case because, unlike some other federal statutes, the statute does not specifically reference tribes. In Joseph Chayoon v. Elaine L. Chao, 355 F.3d 141 (2nd Cir 2004), the most recent decision addressing the issue of the applicability of the FMLA to Indian tribes, the court agreed with the decision of the Ninth Circuit in Sharber v. Spirit Mountain Gaming Inc., 343 F.3d 974 (9th Cir. 2003) that the question

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of whether or not a law such as the FMLA would apply to tribes should be initially decided by the tribes,. Both courts ruled that it was important for the tribes to address issues such as whether the tribe was federally recognized, whether the tribe had waived its immunity, whether the business in question existed for the primary purpose of furthering tribal business, whether the business in question operates in interstate commerce and whether the business operates for the primary benefit of the tribal members and governance. In rendering these decisions, one of the courts retained jurisdiction over the question by granting a stay of the federal court action pending a decision by the tribal court so that the litigant would not be subject to arguments that the statute of limitations had run if the tribal court decided that the FMLA did apply. Because many tribal businesses operate outside the boundaries of the tribal property, there is no hard and fast answer to the question of whether or not the FMLA, which specifically fails to exempt tribes from its application, applies to tribes. FMLA in General In an attempt to balance a family’s needs against the demands of the workplace, Congress designed the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601-2654 (“FMLA”), to provide a security net by setting minimum employment standards for unpaid leave on the basis of medical necessity. In 1995, the Department of Labor issued regulations to implement the statutory provisions of the FMLA. 29 C.F.R. part 825. The FMLA went into effect for employers with 50 or more employees on August 5, 1993. For employers with collective bargaining agreements in effect on that date, the FMLA went into effect when the agreement expired or on February 5, 1994, whichever was earlier. The FMLA covers public employers and private employers with 50 or more employees working within 75 miles of the leave-seeking employee’s worksite. The 50-employee requirement exempts approximately 95 percent of private employers from coverage. The FMLA does not displace any provision of a state or local law that provides greater family or medical leave rights to employees. Since the FMLA places no obligation on employees to designate whether the leave they are taking is FMLA leave as opposed to leave under a state law, employers covered by both the federal FMLA and an applicable state law must comply with the provisions of both. If the state and federal laws contain conflicting provisions, the employee must be accorded the greater benefit in each instance, even if that means using different provisions from each law to assemble the package most beneficial to the employee. II. ELIGIBILITY

To be eligible, the employee must have worked for at least 12 months and 1,250 hours during the 12-month period. An employer may choose any one of a variety of methods outlined at 29 C.F.R. §825.200(b) for measuring the 12-month period, including the “fixed” calendar year method or the “rolling” period in which the twelve months are measured backwards from the date of requested leave. An eligible employee is entitled to 12 “work-weeks” of leave during any 12-month period.

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Eligible employees are entitled to family and medical leave for the following reasons:

1. the birth of a child, and in order to care for that child; 2. the placement of a child with the employee for adoption or foster care; 3. care of a spouse, child, or parent who has a “serious health condition”; or 4. the employee’s own “serious health condition” which makes him or her

unable to perform the functions of the job. Spouses employed by the same employer are jointly entitled to a combined total of 12 workweeks of family leave for the birth and care of the newborn child, placement of a child for adoption or foster care, and to care for a parent who has a serious health condition. Leave for birth and care or placement for adoption or foster care must conclude within 12 months of the birth or placement. Under some circumstances, employees may take FMLA leave intermittently — which means taking leave in blocks of time, or by reducing their normal weekly or daily work schedules.

• If FMLA leave is for birth and care or placement for adoption or foster care, use of intermittent leave is subject to the employer’s approval.

• FMLA leave may be taken intermittently whenever medically necessary to care for a seriously ill family member or because the employee is seriously ill and unable to work.

Also, subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave. The employer is responsible for designating if an employee’s use of paid leave counts as FMLA leave, based on information provided by the employee. While the paid leave option is attractive, many employees who have no paid time available decline FMLA leave altogether because they cannot afford to take unpaid leave. With New Law, California Becomes First State to Offer, CURRENT DEVELOPMENTS (Family & Medical Leave Handbook), Nov. 2002 at 1, 5. Last year California took steps toward solving such employees’ dilemma by amending its State Disability Insurance (SDI) program with the Family Temporary Disability Insurance (FTDI) program. FTDI makes 80% of the state’s employees eligible for up to six weeks of partial wage replacement for leave taken to care for ill family members or new children, effective July 1, 2004. Id. Other states such as Rhode Island, New Jersey, New York, Hawaii, and the Commonwealth of Puerto Rico may soon follow suit. Id.

A. Maintenance of Health Benefits

A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken. The insurance must offer the same terms the employees would have enjoyed had they continued work. If applicable, arrangements will need to be made for employees to pay their share of

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health insurance premiums while on leave. In some instances, the employer may recover premiums it paid to maintain health coverage for an employee who fails to return to work upon the expiration of FMLA leave.

B. Unlawful Acts

It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice or having any involvement in a proceeding related to FMLA.

C. Enforcement

The Wage and Hour Division investigates complaints. If violations cannot be satisfactorily resolved, the U.S. Department of Labor may bring action in court to compel compliance. Individuals may also bring a private civil action against an employer for violations.

RECENT CASES INTERPRETING ELIGIBILITY The cases discussed in this paper are for illustration purposes only and represent the most recent cases from all jurisdictions interpreting the FMLA. The cases discussed may not necessarily be binding in your jurisdiction and should not be used as a substitute for legal advice.

Employer not “successor in interest” merely because it purchased patient records.

Siciliano v. Cambridge Home Health Care, Inc., 65 Fed. Appx. 542, 2003 U.S. App. LEXIS 10865 (6th Cir. 2003).

A federal appellate court affirmed that Siciliano could not count hours worked at one company toward her FMLA eligibility at another company, ruling that an employer that purchased patient lists and records from another but did not hire all of its employees was not its “successor in interest.”

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Hours must be worked to be considered “hours of service.” Plumley v. Southern Container, Inc., 303 F.3d 364 (1st Cir. 2002). In Plumley, the First Circuit considered whether an employee who failed to work enough hours to qualify for FMLA leave, but who was prevented from doing so by a termination that was later reversed, could still establish his FMLA eligibility. After plaintiff was initially discharged, he filed a grievance and an arbitrator reduced the termination to a two-week unpaid suspension granting plaintiff back pay for the rest of the time he would have worked. The first two days after he returned to work, however, he only worked two hours explaining that he had missed work to care for his father. His employer, however, claimed that he had abandoned his job and fired him again. Plaintiff argued that his employer had failed to give him necessary FMLA leave, while his employer argued that the employee had not worked 1,250 hours in the previous year and therefore, was ineligible for FMLA protection. The employee had worked only 851.25 hours for his employer in the 12 months before he took the leave. He argued, however, that the hours for which the arbitrator awarded him back pay also should be included in the work hour calculation yielding a total in excess of 1,250. Affirming summary judgment for the employer, the First Circuit considered the language of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207, incorporated by the FMLA for purposes of determining whether an employee meets the hours requirement. Because the FLSA speaks of remuneration “for employment,” see id., and dictionary definitions of “employment” use the term “work,” which in turn is defined by an exertion of effort, hours counted toward FMLA eligibility must be hours during which an employee actually worked. The First Circuit buttressed its holding with a comparison to other items not considered work under FLSA § 207(e) and with case law suggesting that courts consider whether an employer was benefited in the determination of hours counting toward eligibility.

Employee is entitled to eligibility based on hours worked for employer’s predecessor in interest.

Carlson v. Rent-A-Center, Inc., 237 F. Supp. 2d 114 (D. Me. January 14, 2003) (adopting magistrate’s ruling). Carlson worked for Wilson Enterprises, a Rent-A-Center franchisee, for nearly four years before Rent-A-Center bought Wilson’s assets on June 27, 2000. When Carlson requested FMLA leave on August 30, 2000, Rent-A-Center notified Carlson he was ineligible since he had not worked for Rent-A-Center for the requisite 12 months. Carlson brought an FMLA claim and the issue arose on Rent-A-Center’s motion for summary judgment. Successors in interest are included in the definition of “employer” for eligibility purposes pursuant to 29 U.S.C. § 2612(a)(1). Therefore, whether Carlson was eligible depended upon whether Rent-A-Center was a “successor in interest” according to the factors laid out in 29 C.F.R. § 825.107. Because Rent-A-Center failed to offer sufficient evidence by which the court could make a totality of the circumstances determination of the successor in interest question, the motion for summary judgment failed. The court also noted that with the evidence presented, including the fact that Rent-A-Center appeared to use the same retail sites and offer the same products and services as

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Wilson, had it appeared there may well have been a continuity of business operations after the sale, which would make Rent-A-Center a successor in interest.

Employers covered by FMLA must have 50 employees in a 75-mile radius at the time of the FMLA request.

Grimsley v. Fiesta Salons, Inc., 2003 U.S. Dist. LEXIS 298 (E.D. Mich. Jan. 7, 2003). At the time Grimsley claimed to have given notice of her intent to take FMLA leave, Fiesta employed 49 employees at 5 salons within a 75-mile radius in Michigan. In addition, Fiesta’s Region 8 manager worked from her home in Michigan, reporting to company headquarters in Dublin, Ohio. After termination, Grimsley brought suit alleging Fiesta terminated her in retaliation for having taken FMLA leave. The issue was whether Grimsley was an eligible employee despite the exclusion at 29 U.S.C. § 2611(2)(B)(ii), declaring employees at worksites where the employer employs less than 50 employees within a 75 miles are not eligible for FMLA protection. Grimsley argued that the relevant time to determine whether an employee works for an employer who has 50 or more employees within 75 miles was each working day during each of 20 or more calendar workweeks in the current or preceding calendar year, borrowing from the definition of eligible employers in 29 U.S.C. § 2611(4)(A)(i). The court disagreed. The purpose of 29 U.S.C. § 2611(2)(B)(ii) is to fix the date for determination of employee eligibility for FMLA benefits and to protect the employee who is eligible at the time of the request from an employer seeking to avoid coverage by subsequently reducing its workforce. Therefore, the relevant time for determination of whether an employer has 50 or more employees within 75-miles of the employee’s workplace is the time at which the FMLA request is made. In addition, the court refused to consider the Region 8 manager the 50th employee, since her workplace was considered the home office in Dublin, Ohio, more than 75-miles away from Grimsley’s workplace. Therefore, the court dismissed Grimsley’s claim.

Vacation time counts toward 1,250 hours. Ruder v. Me. Gen. Med. Ctr., 204 F. Supp. 2d 16 (D. Me. 2002). When Ruder took leave to receive treatment for a serious medical condition, he had at least two weeks of unused vacation time. His employer denied Ruder’s request for leave under the FMLA but permitted him to take a medical leave of absence. Ruder reported to work when his approved medical leave ended and his employer terminated his employment. His employer subsequently divided his position into two positions and required Ruder to reapply and interview for one of the new positions. After Ruder interviewed, his employer declined to rehire him. Ruder filed suit against Maine General alleging it had violated the FMLA by denying his request for FMLA leave, failing to reinstate him upon his return, and terminating his employment. His employer moved to dismiss his claims on the basis that he was not an “eligible” employee when he took his leave and thus did not merit the protections of the FMLA. In order to receive the statute’s protections, an employee must meet two threshold requirements: (1) he must have worked for the employer for a minimum of 12 months; and (2) he must have worked at least 1,250 hours in the preceding 12 months. 29 U.S.C. § 2611(2)(A); 29 C.F.R. § 825.110(a). The court, interpreting 29 C.F.R. § 825.110, held employee may take a vacation during which he

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remains on the payroll and is receiving benefits, and during that vacation pass the one-year eligibility threshold of the FMLA.

RECENT CASES INTERPRETING UNLAWFUL ACTS

Former employee’s FMLA retaliation suit barred by post-employment waiver. Faris v. Williams WPC-I, Inc., 332 F.3d 316 (5th Cir. Tex. 2003). A federal appeals court overturned a lower court decision in favor of the employee and ruled that a signed waiver prohibiting a terminated employee from suing her former employer under any federal, state, or local law barred her FMLA retaliation claims.

Employee may not waive FMLA rights. Dierlam v. Wesley Jessen Corp., 222 F. Supp. 2d 1052 (N.D. Ill. 2002). After being offered a “stay bonus” for actively working from November 1, 2000, through September 30, 2001, during the acquisition of Wesley by another company, Dierlam obtained FMLA leave for adoption of a child. Wesley prorated and reduced Dierlam’s bonus in the amount of $8,407.70, reflecting her 12-week leave. Upon her return to work, Wesley had Dierlam sign a “Confidential Separation Agreement and General Release,” agreeing to release, among others, claims arising under FMLA. On cross-motions for summary judgment, the court found the clause unenforceable as a matter of law pursuant to the plain language of 29 C.F.R. §825.22(d).

RECENT CASES INTERPRETING ENFORCEMENT

Union lacks standing to sue for alleged FMLA violations. N.Y. Metro Area Postal Union v. Potter, 2003 U.S. Dist. LEXIS 4904 (S.D.N.Y. March 31, 2003). When a labor union brought suit on behalf of postal-workers alleging that the United States Postal Service (USPS) improperly denied FMLA leave and interfered with postal workers’ FMLA protection by failing to provide adequate notice of their FMLA rights, USPS moved to dismiss. Dismissing, the court looked to Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333 (1977), in which the Supreme Court held that, in order to have standing, organizations suing on behalf of individuals must establish, among other things, that neither the claim nor relief requested requires the participation of individual members. Because evidence concerning individual USPS employees would be essential to prove many of the claims asserted by the union, the court granted USPS’s motion to dismiss.

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RECENT CASES INTERPRETING MORE GENEROUS LEAVE RIGHTS

FMLA may supersede more expansive state remedies. Johnson v. Honda of Am. Mfg., 221 F. Supp. 2d 853 (S.D. Ohio 2002). After termination, the plaintiff filed a complaint against his former employer including three separate claims: two alleging violation of the FMLA and another alleging wrongful discharge in violation of Ohio public policy. The issue arose on the defendant’s motion to dismiss the wrongful discharge claim. The merit of the wrongful discharge claim turned on a violation of a clear public policy. The FMLA provided the clear public policy which the defendant allegedly violated. The plaintiff argued that he must be allowed to assert a wrongful discharge claim in addition to an FMLA claim because the FMLA does not preempt state law providing greater family or medical leave rights than those established under the FMLA. However, the court found no preemption issue. Because the public policy claim depended upon a violation of the FMLA, the wrongful discharge claim merely afforded the plaintiff more expansive remedies for violation of his federal rights. Accordingly, the court refused to allow the plaintiff to bring a wrongful discharge public policy claim based only on the alleged FMLA violation. III. SERIOUS HEALTH CONDITIONS

A serious health condition is defined in 29 C.F.R. § 825.114. The FMLA’s definition of the term is very broad and is intended to cover a variety of physical and mental conditions. “Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves either:

1. Any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care; or

2. Continuing treatment by a health care provider which includes any period of incapacity (i.e., inability to work, attend school or perform other regular daily activities) due to:

a. a health condition (including treatment therefore, or recovery there from) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes:

• treatment two or more times by or under the supervision of a health care provider; or

• one treatment by a health care provider with a continuing regimen of treatment; or

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b. pregnancy or prenatal care. A visit to the health care provider is not necessary for each absence; or

c. a chronic serious health condition which continues over an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity (e.g., asthma, diabetes). A visit to a health care provider is not necessary for each absence; or

d. a permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer’s, a severe stroke, terminal cancer). Only supervision by a health care provider is required, rather than active treatment; or

e. any absences to receive multiple treatments for restorative surgery or for a condition which would likely result in a period of incapacity of more than three days if not treated (e.g., chemotherapy or radiation treatments for cancer).

Treatments include examinations to determine if a serious health condition exists, but do not include routine physical, dental, or eye examinations. Section 825.1112(g) states that FMLA leave is available for treatment of substance abuse provided that the condition in question is a “serious health condition” within the meaning of the regulations. “Health care provider” means:

• Doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctors practice; or

• Podiatrists, dentists, clinical psychologists, optometrists and chiropractors (limited to manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice, and performing within the scope of their practice, under state law; or

• Nurse practitioners, nurse-midwives and clinical social workers authorized to practice, and performing within the scope of their practice, as defined under state law; or

• Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts; or

• Any health care provider recognized by the employer or the employer’s group health plan benefits manager.

RECENT CASES INTERPRETING SERIOUS HEALTH CONDITION

Incapacity due to pregnancy is a serious health condition.

Blackburn v. Potter, 2003 U.S. Dist. LEXIS 5269 (S.D. Ind. March 31, 2003).

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A postal employee requested FMLA leave to care for her nineteen year-old daughter during and after her daughter’s cesarean section. After the postal service refused FMLA leave, the employee took leave to attend to her daughter. Subsequently, the employee was terminated for unsatisfactory attendance, in part based upon her attempted FMLA leave. When the employee brought action, the defendant moved for summary judgment, insisting that the plaintiff failed to provide adequate notice and that delivery by cesarean section was not a sufficiently serious medical condition. Denying the motion for summary judgment, the court acknowledged that courts typically do not consider pregnancy alone a serious medical condition. However, the case at bar involved “incapacity associated with and immediately following delivery,” in this case a surgically-facilitated delivery. The court held that incapacity due to pregnancy is presumptively a serious health condition and the defendant failed to offer any reason to depart from that presumption.

Dentist visits routine problem, not serious health condition. DuCharme v. Cape Indus., 2002 U.S. Dist. LEXIS 21926 (E.D. Mich. 2002). Ducharme received FMLA leave from his employer due to gum disease and recurring tooth abscesses. A series of six treatments for his conditions began in March 1999 and continued through November of the same year. On May 21, 2000, Ducharme suffered tooth pain and called his employer the following morning, indicating he was taking an “FMLA day.” Ducharme had a tooth extracted on May 24 and continued to miss work later in the same week. Ducharme’s employer sent him a termination letter on May 26. Granting the defendant employer’s motion for summary judgment, the court found that Ducharme failed to demonstrate that the tooth extraction “constituted anything more than a ‘routine dental or orthodontia problem’ exempted by the section 825.114(c) regulation.’” Because Ducharme failed to set forth a serious medical condition, the defendant was entitled to summary judgment. The defendant was also entitled to summary judgment on notice grounds.

FMLA did not protect skipping workdays to avoid harassing co-worker. Jarvis v. Gerstenslager Co., 2003 Ohio 3165, 2003 Ohio App. LEXIS 2839 (Ohio Ct. App., Wayne County June 18, 2003), appeal den., 2003 Ohio 5396, 2003 Ohio LEXIS 2739 (Ohio Oct. 15, 2003). A state appeals court ruled that an employer’s decision to fire two employees who did not report to work to avoid contact with another employee who had harassed them did not violate the FMLA. The court found that, although the plaintiffs obtained doctors’ notes stating they could not work, they did not present evidence that they suffered from a “serious health condition.”

Non-continuous treatment for child abuse damage fails under CFRA. Detels v. Farmers Ins. Exch., 2002 Cal. Unpub. LEXIS 11942 (Cal. Ct. App. 2002) rev. den., 2003 Cal. LEXIS 2050 (Cal. Mar. 26, 2003) (unpublished).

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After discovering her child suffered abuse at the hands of her nanny, Detels took leave based on the California Family Rights Act (CFRA), the California corollary to FMLA. During her month-long leave, Detels took her son to a previously scheduled auditory appointment and to a pediatrician for evaluation of damage done by child abuse. Both physicians found nothing physically wrong with the child, though the pediatrician thought he may be suffering psychological trauma. Upon her return to work Detels was demoted and subsequently resigned. Detels brought action pursuant to CFRA against her employer. The employer moved to dismiss, arguing that Detels’s child did not suffer from a “serious medical condition.” Granting the motion to dismiss, the court determined that the doctors’ visits failed to establish “continuing treatment or continuing supervision by a health care provider.” The court noted that the pediatrician offered no treatment and did not subsequently supervise a regimen of care for Detels’s son. Expressing sympathy, the court declared “CFRA simply does not protect all family-related leave requests, even those that most of us would agree are appropriate.”

Self Diagnosis of Pregnancy Related Depression fails under FMLA Dowell v. Indiana Heart Physicians, Inc, 2004 U.S. District LEXIS 26433 (S.D. Ind. December 22, 2004). The federal district court ruled that an employee’s own opinion that she as suffering from pregnancy related depression, absent diagnosis and treatment by a health care professional was insufficient to establish that she was suffering from a serious health conditions. IV. MEDICAL CERTIFICATIONS

An employer can require certification of the need for leave from a health care provider if the leave request is based on an employee’s own serious health condition or the serious health condition of an employee’s family member. 29 C.F.R. § 825.305(c). The employer must limit requested information to information related to the person’s serious health condition, as provided in the DOL Form WH-380. Getting Medical Certification Directly From Worker Avoids Possible Clash with HIPAA Privacy Mandates, CURRENT DEVELOPMENTS (Family & Medical Leave Handbook), Mar. 2003. If an employee will be using paid sick leave as part of the FMLA leave and the employer’s sick leave program has different certification requirements than that of the FMLA, the less detailed and less stringent certification requirement of the two apply. Employers Must Use Care When They Are Handling Employee Failure to Submit Medical Certifications, CURRENT DEVELOPMENTS (Family & Medical Leave Handbook), June 2003. The employer must initially provide notice of the certification requirement in writing, after which an oral request for certification and consequences for failure to produce certification will suffice. Id. Where leave is foreseeable, the oral request for certification ought to occur immediately after the employee seeks leave. Id. Where leave is not foreseeable, the employee ought to provide oral notice within two business days after the leave begins. Id. If validity of the certification is in doubt, the employer can require the employee to obtain a second opinion, but at the employer’s expense. An employer may not request recertification

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more than once in a 30-day period. If the two opinions conflict, then the employer may pay for a third opinion from a provider who is jointly approved by the employer and employee. The third opinion is considered final. Where leave is foreseeable, the employee ought to provide certification before the commencement of the leave. Where pre-leave certification is not possible, the employee must provide certification within the employer’s set timeframe, which must give the employee at least 15 days after the certification request to provide certification. Where an employee altogether fails to provide certification, the absence will not be considered FMLA leave. 29 C.F.R. § 825.311(c); 29 C.F.R. §825.312(b). Medical certification must include certain information (29 C.F.R. § 825.306), including a statement indicating which part of the definition of “serious health condition” applies to the patient’s condition, and the medical facts supporting the certification. The certification must also include the approximate date the condition commenced and the probable duration of both the condition and the patient’s present incapacity. Also required is some indication as to whether it is necessary for the employee to take intermittent or reduced-schedule leave, and if so, the probable schedule of such leave. If additional treatments are required for the condition, certification must provide an estimate of the probable number of treatments. If leave is required because of the employee’s own serious health condition, the certification must state whether the employee:

1. is unable to perform work of any kind;

2. is unable to perform any one or more of the job’s essential functions, and if so, which ones; and

3. must be absent from work for treatment.

If the leave is requested to care for a spouse, child or parent with a serious health condition, the certification must state what needs the patient requires.

Avoiding HIPAA Problems In order to avoid Health Insurance Portability and Accountability Act (HIPAA) complications, employers ought to try to obtain the certification directly from the employee rather than from the healthcare provider’s files. New HIPAA Rules Protect Health Data, CURRENT DEVELOPMENTS (Family & Medical Leave Handbook), May 2003. Medical documents provided by the employee are considered employment records rather than medical records for purposes of HIPAA and, accordingly, HIPAA privacy restrictions will not extend to such documents. Id. If an employer would like to follow up by directly contacting the healthcare provider, the employer must obtain a HIPAA authorization from the employee. Id.

Verifying Leave Requests and Compliance with ADA.

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To achieve compliance with the ADA, certain procedures should be followed when verifying employee leave requests. The following suggestions may be helpful:

1. Written certifications required by employers under the FMLA should be narrowly tailored to secure only the information necessary to verify leave requests. For example, an employer may ask that the physician only verify that leave is necessary, and not disclose the medical condition requiring leave.

2. If certification is required to support a request for medical leave, the information required should be job related and consistent with business necessity (e.g., need for the leave, length of the leave, and timing of the leave). Seeking more information than necessary to verify the leave request may violate the ADA.

3. Employers should be careful not to inquire into possible future effects of an employee’s “serious health condition” during the certification process. For example, if a written certification verifies that an employee has cancer, the employer may not inquire whether the illness is terminal.

4. Supervisors should be instructed not to discuss leave requests or medical conditions with employees. Someone knowledgeable about leave policies and the ADA should be designated as the person responsible for processing leave requests.

5. The employee’s supervisor should be told only that the employee will be taking leave and will return at a specified date.

RECENT CASES INTERPRETING MEDICAL CERTIFICATIONS

Employer has duty to inquire into employee status under FMLA.

Bailey v. Southwest Gas Co., 275 F.3d 1181 (9th Cir. 2002). An employee complained about working too much overtime, informing her employer that the medication she was on made it unsafe for her to be working the required overtime. Her employer requested she have her doctor complete the FMLA Form 180.4 “Certification of Health Care Provider” and submit the form back to them in 15 calendar days. The employee’s physician partially filled out the medical certification form. The court held that the FMLA did not apply to the employee’s case, since she testified in her deposition that she did not have a serious health condition, never requested FMLA leave and would not have taken FMLA leave had it been offered. The court recognized that her employer had both the right and the responsibility to inquire further about her medical condition after she and her doctor indicated she was taking soporific medication which interfered with her ability to work overtime. Her employer had the obligation to explore her status under the FMLA, and the right under company policies to which she had agreed when she started her employment, to obtain more information

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as to whether she remained fit for duty. The court found that the employer complied with its duties and responsibilities under the FMLA, but that the employee failed to carry her burden. The medical certification form, as partially completed by her doctor, was not a complete certification as required under the FMLA. See 29 U.S.C. § 2613(b); 29 C.F.R. § 825.307(a).

It was a violation of the FMLA to fire a worker over missing her medical certification.

Urban v. Dolgencorp of Tex., Inc., 2003 U.S. Dist. LEXIS 15334 (N.D. Tex. Aug. 6, 2003). A federal court found that Urban’s employer violated the FMLA when it fired her after her doctor failed to provide medical certification of her health condition. The court agreed with Urban that her employer should have given her a chance to have her physician fax the medical certification after it realized that the certification deadline had not been met, rather than firing her.

Court undecided as to whether employee presented proper certification of a serious illness.

Lines v. City of Ottawa, 2003 U.S. Dist. LEXIS 10203 (D. Kan. June 16, 2003). An employer’s request to dismiss the claims of a city employee who claimed that he was improperly denied his request to take FMLA leave in lieu of termination until he could control his epilepsy was denied by a federal district court. The court found that, while the employee requested FMLA leave while still employed by the city, a question of fact remained as to the sufficiency of the medical certification provided by his doctor.

Employer must keep medical certification confidential. Doe v. United States Postal Serv., 317 F.3d 339 (2003). An HIV-positive employee missed several weeks of work due to his illness. The Postal Service (USPS) sent the employee a letter requiring that he provide an explanation of the nature of his illness, indicating he may qualify for FMLA leave. The employee’s submission of certification marked the first time he had revealed his condition to anyone at USPS. Upon returning from leave, the employee’s illness was common knowledge among employees. The employee brought suit alleging his supervisor improperly disclosed the contents of his certification, relying on the convergence of the FMLA, the Privacy Act of 1974 (Privacy Act), 5 U.S.C. § 552(a) (forbidding federal agencies’ disclosure of records without written consent), and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(d) (prohibiting employers’ disclosure of employees’ medical conditions, except for voluntary medical examinations and inquiries into employee’s ability to perform job functions). The district court granted USPS’s motion for summary judgment, finding the employee failed to raise an a genuine issue of material fact as to whether USPS had improperly disclosed in violation of the Privacy Act and that the FMLA form was not an employer inquiry subject to the ADA’s confidentiality requirements. Reversing, the D.C. Circuit Court of Appeals held that a reasonable jury could

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have concluded that a USPS employee received information about the employee’s condition from protected medical records. Moreover, USPS’s contention that the employee’s disclosure fell under an ADA exception had no merit. The employee’s disclosure was not voluntary but was in response to USPS’s inquiry, and the medical certification was not to determine ability to perform job functions but to ascertain why the employee had been absent. See also Jarvis v. Gerstenslager Co., supra.; Mathews v. Fairview Health Serv., 2003 U.S. Dist. LEXIS 5901 (D. Minn. April 7, 2003), infra; and Peeples v. Coastal Office Prods., 2003 U.S. App. LEXIS 8644 (4th Cir. May 7, 2003), infra.

Medical Certification from Second Physician Sufficient. Electrolux Home Prods. v. The United Automobile Aerospace and Agricultural Implement Workers of Am., 416 F.3d 848 (8th Cir. 2005). An arbitrator overturned a decision to terminate an employee for attendance reasons was improper because the employee obtained a medical certification from a second health care provider advising that she suffered from a serious health condition.

Incomplete or Inadequate Certification. Kauffman v. Federal Express Corp., 2005 W.L. 2649978 (7th Cir. October, 2005). Court ruled that Federal Express could not terminate someone based upon an incomplete medical certification without providing the employee an opportunity to correct the deficiencies. This was particularly true when the employee had clearly been absent for medical reasons for three consecutive days. V. NOTICE

A. Providing Notice to Employees.

Covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA. An employer that willfully violates this posting requirement may be subject to a fine of up to $100 for each offense. Also, covered employers must inform employees of their rights and responsibilities under FMLA, including giving specific written information on what is required of the employee and what might happen under certain circumstances, such as if the employee fails to return to work after FMLA leave. If an employer provides its employees with an employee handbook or other written guidance concerning employee rights, information concerning employee rights and obligations under the FMLA must be included in the document (29 C.F.R. § 825.301(a)). An employer who does not provide a handbook or other written documentation describing employee benefits and leave provisions must provide written guidance to an employee

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regarding FMLA rights and obligations whenever an employee requests FMLA leave. The notice should include:

1. the leave will be counted against the employee’s 12 weeks;

2. the medical certification requirements;

3. the employee has the right to use paid leave and the employer may or may not require the substitution of paid leave;

4. the requirements concerning payment of health insurance premiums;

5. the requirements for a fitness-for-duty certificate prior to the employee’s restoration to employment;

6. the employee’s status as a “key employee” and the consequences accompanying such a designation where applicable;

7. the employee’s right to restoration to the same or an equivalent job upon return from FMLA leave; and

8. the employee’s potential liability for payment of health insurance premiums paid by the employer during the unpaid FMLA leave if the employee fails to return to work after that leave.

B. Employee Notice to Employer.

Employees seeking to use FMLA leave are required to provide 30-days advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. If need is not foreseeable, the employee must provide adequate and timely notice as soon as practicable. The notice must provide enough information to make the employer aware of her need for leave and when and for how long the leave will be. Where possible, the employee should consult with the employer to schedule leave to avoid unreasonable interference with the employer’s operations. Employers may also require employees to provide:

1. medical certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family member;

2. second or third medical opinions (at the employer’s expense) and periodic recertification; and

3. periodic reports during FMLA leave regarding the employee’s status and intent to return to work.

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When intermittent leave is needed to care for an immediate family member or the employee’s own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to unduly disrupt the employer’s operation.

RECENT CASES INTERPRETING NOTICE REQUIREMENTS

DOL penalty regulation invalid. Ragsdale v. Wolverine World Wide, Inc., 122 S. Ct. 1155, 152 L. Ed. 2d 167, 535 U.S. 81 (2002). The FMLA guarantees qualifying employees 12 weeks of unpaid leave each year, 29 U.S.C. § 2612(a)(1), and encourages businesses to adopt more generous policies, 29 U.S.C. § 2653. A regulation issued by the United States Secretary of Labor, purportedly pursuant to the FMLA, makes it the employer’s responsibility to tell the employee that an absence would be considered FMLA leave. See 29 C.F.R. § 825.208(a). Furthermore, a penalty regulation provides that, if an employee took paid or unpaid leave and the employer did not designate the leave to FMLA, then the leave taken would not count against an employee’s 12-week entitlement. 29 C.F.R. § 825.700(a). In Ragsdale v. Wolverine World Wide, an employee with cancer was eligible for seven months of unpaid sick leave under her employer’s leave plan. The employee requested and received a one-month leave of absence on February 21, 1996, and asked for a 30-day extension at the end of each of the seven months that followed. The employer granted the first six requests, but did not notify her that 12 weeks of the absence would count as FMLA leave. After the employee had taken 30 weeks of leave, the employer denied a seventh thirty-day extension and ultimately terminated the employee when she did not come back to work. Ragsdale, seeking reinstatement, back pay, and other relief under a remedial provision of the FMLA, 29 U.S.C. § 2617, and other statutory provisions, filed suit in the United States District Court for the Eastern District of Arkansas against her employer. The employee alleged, among other matters, that the Secretary’s penalty regulation required the employer to grant her 12 additional weeks of leave for failing to inform her that the 30-week absence would count against her FMLA entitlement. The district court, in granting the employer summary judgment, concluded the penalty regulation was in conflict with the FMLA and thus invalid, as requiring the employer to grant the employee more than 12 weeks of FMLA-compliant leave in one year. The United States Court of Appeals for the Eighth Circuit affirmed. In a five-to-four decision, the United States Supreme Court ruled that the United States Department of Labor exceeded its authority when it wrote a regulation permitting employees to take more than 12 weeks of leave as provided under the FMLA. Justice Kennedy, joined by Chief Justice Rehnquist, Justices Stevens, Scalia, and Thomas, wrote the opinion holding the penalty regulation effected an impermissible alteration of the FMLA’s statutory framework and that it was not within the Secretary’s power to issue regulations necessary to carry out the FMLA under 29 U.S.C. § 2654 for:

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1. such a penalty for an employer’s failure to provide timely notice of the FMLA designation was unconnected to any prejudice which an employee might have suffered from the employer’s lapse; or

2. the penalty regulation was incompatible with the FMLA’s comprehensive

remedial mechanism which provided no relief unless the employee was prejudiced by a violation of the FMLA; or

3. the penalty regulation altered the FMLA’s cause of action in a fundamental

way, as the remedy created by Congress required a retrospective case-by-case examination; or

4. the penalty regulation amended the FMLA’s most fundamental substantive

guaranty, namely, the 12-week leave entitlement, and thus subverted Congress’ careful balance of the needs of families and the legitimate interests of employers; or

5. the sole notice provision in the FMLA itself, 29 U.S.C. § 2619, merely

imposed a $100.00 fine, enforced by the Secretary, on employers who willfully fail to post a general notice informing employees of their FMLA rights.

The Court noted that the penalty regulations were severe, and across-the-board penalty could cause employers to discontinue the more generous programs the FMLA encouraged. Dissenting, Justice O’Connor, joined by Justices Souter, Ginsberg, and Breyer, expressed the view that (1) the Secretary’s decision to require individualized notice was not arbitrary or capricious; and (2) nothing in the FMLA constrained the Secretary from securing compliance with the individualized notice requirement by providing that leave would not count against the employer’s 12-week obligation unless the employer fulfilled this requirement.

An employer who fails to post required notice cannot take adverse action against an employee for failure to furnish advance notice of leave.

Taylor v. Invacare, Corp., 2003 U.S. App. LEXIS 10318 (10th Cir. May 21, 2003). Taylor had a stress attack on March 24, 1997. When he returned to work he notified his employer of his need for a week’s vacation, which he took, though the employer marked the March 24 absence as an “occurrence.” In June 1997, Taylor requested two days off to take his wife to the doctor. Invacare refused, and when Taylor took leave despite the refusal, Taylor received another “occurrence.” Invacare terminated Taylor in February 1998. Taylor brought action alleging some of the absences for which he was dismissed were protected by FMLA. On appeal from the district court’s denial of motions for judgment as a matter of law, a new trial, and remittitur, Invacare argued Taylor did not provide adequate notice of his need for FMLA leave. The Tenth Circuit held that an employer who does not post the required notice concerning an employee’s rights under the FMLA cannot take adverse action against an employee, including

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denying FMLA leave, for the employee’s failure to give adequate notice. 29 C.F.R. § 825.300(b). While there was conflicting testimony as to whether the requisite notice was posted in the employee cafeteria, viewing the evidence in a light most favorable to Taylor, the court held that Taylor was not required to give notice.

An employee unable to give notice need not do so. An employee’s actions may give sufficient notice.

Byrne v. Avon Prods., Inc., 328 F.3d 379 (7th Cir. May 9, 2003). Byrne, a previously productive employee, started reading and sleeping on the job for as long as six hours during a two-week period in November 1998. When his employer confronted him and terminated him on November 17, Byrne entered treatment for depression, hallucinations, and attempted suicide. Two months later, Byrne had overcome his mental difficulties and attempted to return to work, but Avon refused. Byrne brought suit under the FMLA. The district court granted Avon summary judgment, holding that the FMLA does not excuse misconduct and Byrne’s purported November 17, 1998 notice to Avon came too late. The Seventh Circuit reversed. Judge Easterbrook likened Bryne’s position to that of an employee who suffers a stroke or breaks an arm on the job. Such an employee need not give notice for leave. Similarly, a trier of fact might find that, because of his medical condition, Byrne was unable to give notice or that Byrne’s odd behavior sufficed as notice. If the jury so found, Byrne would be excused from giving notice. Byrne’s two unproductive weeks could then be reclassified as a period of medical leave. Judge Easterbrook remanded the matter for the district court to consider whether Byrne provided notice or was excused from providing notice and, in accordance with that determination, whether the two-week period could be classified as medical leave.

When asked, employee must reveal information about diagnosis and predicted return to work date.

Peeples v. Coastal Office Prods., 2003 U.S. App. LEXIS 8644 (2003). The court found that Peeples’ FMLA claim failed because he did not provide adequate and timely notice to his employer of his need for and the likely duration of sick leave as required by the Department of Labor Regulations implementing the FMLA. Therefore, Peeples did not trigger his employer’s obligations and duties under the FMLA and the termination of employment did not violate the FMLA. Peeples refused to reveal any diagnosis or prediction about his return to work. Thus, he did not satisfy the threshold notice requirements under the FMLA and the Fourth Circuit affirmed the district court’s ruling, upholding the plaintiff’s termination.

Employer’s duty to provide written notice arises only after employee provides sufficient information.

Sanders v. May Dep’t Stores Co., 315 F.3d 940 (8th Cir. Mo. 2003).

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After working for May as a male for thirteen years, Terry Sanders was diagnosed with gender dysphoria. She informed her employer that she wished to end her employment to undergo gender reassignment surgery. When a store official suggested she might qualify for FMLA leave, Sanders refused, fearing the certification process and return to work as a woman would cause embarrassment. Sanders resigned. After surgery Sanders returned to work for May in a different position. Two months later Sanders was terminated. She filed suit alleging May should have provided written notification of her FMLA rights before she resigned for gender reassignment surgery. After the jury found for May, the court denied Sanders’ motion for judgment notwithstanding verdict and Sanders appealed. Affirming, the Eighth Circuit noted that, if Sanders failed to properly notify May of her need for leave, May would be under no obligation to comply with the written notice requirements of 29 C.F.R. § 825.301(c). Moreover, Sanders received a memorandum from May which might have been sufficient to provide notice. Accordingly, the trial court did not err in refusing to grant j.n.o.v.

Applying Ragsdale, no violation of FMLA found where worker took 28 weeks of leave.

Strykowski v. Rush N. Shore Med. Ctr., 2003 U.S. Dist. LEXIS 13206 (N.D. Ill. July 28, 2003). Relying on Ragsdale, 535 U.S. 81 (2002), supra, a district court found that firing an employee who took nearly 28 weeks of medical leave and could no longer perform his essential job functions did not violate the FMLA. According to the court, Strykowski’s FMLA leave began when he first asked for paid time off to have “nonoccupational” back surgery, not months later when he formally requested leave under the FMLA to recuperate from surgery. Moreover, Strykowski’s employer was not required to reinstate him to a different position when complications from his surgery prevented him from performing certain duties like lifting more than ten pounds.

After Ragsdale, employees must show detrimental reliance on insufficient notice.

Farina v. Compuware Corp., 256 F. Supp. 2d 1033 (D. Ariz. 2003). In the midst of a dispute over compensation that would form the basis for a Title VII claim accompanying her FMLA claim, Farina took leave to give birth to triplets. On September 26, 1997, Compuware indicated Farina’s leave would run concurrently with her long-term disability, which began, at the latest, on November 24, 1997. A full 12-week period would provide FMLA coverage through February 16, 1998. Farina gave birth on February 6. On March 5, 1998, Compuware sent Farina a memorandum indicating Farina’s FMLA leave started on February 16 and would not expire until May 6, 1998. When the employer refused to reinstate Farina to her previous position, Farina brought suit. The court declared that Farina would only be entitled to an equivalent position under the FMLA if she was prepared to return to work during a time designated as FMLA leave. While Compuware claimed FMLA leave occurred between November 24 and February 16, Farina claimed FMLA leave occurred between February 16 and May 6. The correct period depended upon Compuware’s compliance with the FMLA notice requirements.

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The court struggled to determine the significance of the March 5 memorandum in light of the Ragsdale decision, 122 S. Ct. at 1155. The court acknowledged that it is the employer’s responsibility to designate leave as FMLA qualifying and to provide notice of the designation to the employee pursuant to 29 C.F.R. § 825.208(a). Furthermore, 29 C.F.R. § 825.208(c) provides that if an employer fails to properly notify an employee that she is using FMLA leave, the time preceding proper notice of the designation can not be counted against the employee’s 12-week FMLA leave. However, the court held that after Ragsdale an employee claiming her employer violated the FMLA notice requirements must show that she “detrimentally relied on and was prejudiced by Defendant’s improper notice, such that ‘the employee would have exercised his or her FMLA rights in the absence of the employer’s actions,’” quoting Ragsdale, 122 S. Ct. at 1162. Applying that analysis to Farina, the court placed great emphasis on the fact that, though she had not yet received the errant March 6 memorandum purporting to extend her FMLA leave, Farina failed to return to work at the conclusion of her original FMLA leave on February 16. Even if Farina had relied on the March 6 memorandum, the reliance could not have detrimentally affected her rights since by the time the memorandum arrived she had already lost her FMLA protection more than two weeks earlier. Farina’s equitable estoppel argument also failed because she could not show that she relied upon Compuware’s representation to her detriment. Accordingly, the court dismissed Farina’s FMLA claim.

An employer must provide notice of its method for measuring the 12-month eligibility period.

Dodaro v. Village of Glendale Heights, 2003 U.S. Dist. LEXIS 5056 (N.D. Ill. March 31, 2003). Dodaro’s employer used the “rolling” method of measuring eligibility, by which employees are eligible for 12 workweeks of FMLA during the 12-month period immediately preceding the sought leave. Because Dodaro used 12 weeks of FMLA leave during the 12 months between May 31, 1999, and May 21, 2000, the employer determined she was ineligible for her requested May 31, 2000 FMLA leave. After Dodaro left in an ambulance on May 31, 2000, she never returned and was discharged on August 18, 2000. Dodaro brought suit alleging she was denied leave in violation of the FMLA. The employer moved for summary judgment, insisting that Dodaro did not qualify for FMLA leave under its “rolling” method for determining eligibility. Because the parties stipulated both that the “rolling” method is an acceptable alternative to the “calendar” method under (b) 29 C.F.R. §825.200(d) and that under the calendar method Dodaro would have qualified for FMLA leave, the case turned upon whether the employer had effectively chosen the “rolling” method. The employer included a general description of its FMLA policy in its employee handbook. However, the handbook provided no discussion of the company’s method of measuring months for eligibility. The employer did specify the “rolling” method applied in a separate written document provided to Dodaro when the policy was first instituted and when she first applied for an FMLA leave in 1999. The court construed 29 C.F.R. § 825.301(a)(1) to require that the defendant incorporate its election of the “rolling” method in the employee

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manual. Because the defendant failed to do so until after Dodaro’s discharge and two and a half-years after the policy’s adoption, the employer failed to properly elect the “rolling” method. Therefore, the method more favorable to the employee applied pursuant to 29 C.F.R. §825.200(e). Under the calendar method Dodaro would have been eligible for leave. Therefore, defendant’s motion for summary judgment on Dodaro’s FMLA claim was denied.

Employee need not ask specifically for FMLA benefits. Blackburn v. Potter, 2003 U.S. Dist. LEXIS 5269 (S.D. Ind. March 31, 2003). The defendant employer moved to dismiss, alleging the plaintiff failed to provide adequate notice because she failed to expressly assert that her daughter was incapable of self-care or suffered from a disability that substantially limited a major life activity. Denying the motion to dismiss the FMLA claim, the court recognized that requiring such “highly particularized notice” would come close to requiring an employee to expressly assert her FMLA claims, in contravention of 29 C.F.R. §825.303(b).

Notice for exigent leave must specify urgency or lack of knowledge. Aubuchon v. Knauf Fiberglass, GmbH, 240 F. Supp. 2d 859 (S.D. Ind. 2003). An expectant father first informed his employer of his intention to take leave in a voicemail to the plant nurse on August 21, two days after his wife’s initial due date. Then, after missing nearly nine shifts, the employee contacted his production superintendent, revealing that his wife had not experienced any major complications, but that he was home taking care of her. Finally, on September 1, the employee returned completed FMLA forms obtained from the plant nurse. The employee’s wife gave birth on September 2. After termination, the employee filed action for interference and retaliation under FMLA. On defendant’s motion for summary judgment, the court noted that, where leave is foreseeable, the employee must provide 30 days notice. Where leave is not foreseeable, the employee must provide notice as soon as practicable. When providing exigent notice, the employee must also indicate that he lacks knowledge of approximately when leave will be required to begin or that there has been a change in circumstances or a medical emergency. Here, the employee failed to provide the employer notice that he required exigent leave because none of the three communications called his supervisor’s attention to any change in circumstances or medical emergency. Therefore, the court granted summary judgment.

Employees must inform employers about return to work date. Junker v. Amana Co., L.P., 240 F. Supp. 2d 894 (N.D. Iowa 2003). The defendant employer granted an initial medical leave, set to expire on November 23, 2000. At a November 7, 2000 appointment, the plaintiff received a medical certification providing for a return to work date of December 4, 2000. The plaintiff insisted he twice asked the nurse to fax the certification to the defendant. But the defendant claimed it never received the certification and thus terminated the plaintiff on November 30, 2000. Despite evidence that

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the defendant destroyed its records of receipt of faxes during the relevant time period and evidence that the defendant received documents which may have put it on notice, the plaintiff’s failure to produce evidence that he or his wife ever contacted the defendant to confirm its receipt of the extension proved fatal. Because the plaintiff failed to provide notice of his need for extended leave, the court granted defendant summary judgment on the FMLA claim. VI. RETURN TO WORK ISSUES

The regulations allow employers to require employees on leave to report periodically on whether or not they plan to return to work. An employer is required to maintain health benefits and restore the employee to his or her job or an equivalent position until the employee gives unequivocal notice of intent not to return to work. 29 C.F.R. § 825.309. An employer may require that an employee obtain “fitness for duty” certification only if the employer gave the employee notice of such certification prior to leave commencing or immediately thereafter. The policy must be uniformly applied to all similarly-situated employees. Certification for fitness to return to work may be requested only with regard to the particular illness that caused the need for FMLA leave. 29 C.F.R. § 825.310. The certification need only be a simple statement that the employee is able to return to work.

Checklist for Return-to-Work Certification Employers should remember the following key points concerning the FMLA’s return-to-work certification requirements:

1. Adopt a uniformly-applied policy or procedure requiring return-to-work certification from employees who take FMLA leave for their own serious health conditions.

2. Notify employees of the return-to-work certification policy.

3. Do not request return-to-work certifications from employees taking intermittent leave.

4. Be aware of state laws and collective bargaining agreements that may present special requirements regarding an employee’s return to work (especially those who work with the public).

5. Make sure the return-to-work certification comes from the employee’s own health care provider.

6. Ensure that the return-to-work certification only relates to the particular health condition that caused the employee’s need for FMLA leave.

7. Have the employer’s health care provider contact the employee’s physician only with the worker’s permission and only for clarification of the

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employee’s fitness for duty. Do not delay the employee’s reinstatement pending contact with his or her doctor.

8. Do not request second or third opinions on return-to-work certifications.

9. Do not require the employee to submit to a fitness-for-duty test before resuming work unless the test is completely unrelated to the worker’s reasons for taking FMLA leave.

RECENT CASES INTERPRETING RETURN TO WORK ISSUES

Employer may not require additional fitness tests. Mathews v. Fairview Health Servs., 2003 U.S. Dist. LEXIS 5901 (D. Minn. April 7, 2003). Fairview granted Mathews, a part-time truck driver, retroactive FMLA leave for installation of a pacemaker. Prior to reinstatement, Fairview policy required employees returning from FMLA leave to consult with Fairview’s Health Services Department and provide documentation of the employee’s ability to resume work. After Mathews furnished a physician release stating Mathews could return to unrestricted work but for no more than 40 hours per two-week period, Fairview required Mathews to proceed to a Department of Transportation (DOT) examination. The DOT examiner found Mathews passed DOT requirements, but additionally noted that he would not approve Mathews for other tasks involved in his job, such as lifting. Fairview then informed Mathews he must furnish a release from a cardiologist. Mathews brought a failure to restore claim. The court held that Fairview’s solicitation of the DOT examiner’s opinion on matters outside the scope of DOT regulatory requirements violated the FMLA. After Mathews obtained his fitness-for-duty release from a health care provider and cleared DOT requirements for driving, Fairview could only provide outright reinstatement or seek clarification from Mathews’s health care provider, reinstating Mathews to his position until such clarification could be obtained. Accordingly, Fairview’s motion for summary judgment was denied. VII. RETROACTIVE DESIGNATION OF LEAVE ISSUES

It is always the employer’s obligation to designate leave, paid or unpaid, as FMLA leave. 29 C.F.R. § 825.208(a)(2). Regulations provide that this designation must take place, absent extenuating circumstances, within two business days. If the employer has notice that the employee’s leave qualifies as FMLA leave and does not designate the leave as such, it may not designate the leave retroactively unless: (1) the employee has been out of work and the employer does not learn of the reason for leave until after the employee returns (in which case the employer must designate the leave upon the employee’s return to work); or (2) the employee has provisionally designated leave as FMLA leave and is awaiting receipt of medical certification or other reasonable documentation of the need for leave. By the same token, if the employee gives notice of the reason for the leave later than two business days after returning to work, the employee is not entitled to the protection of the FMLA. 29 C.F.R. § 825.208(e)(1).

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If the employee requests FMLA leave after the leave has begun, the paid period may be retroactively counted as FMLA leave as long as qualified. If an absence does not originally qualify for FMLA leave, but later develops into an FMLA-qualified absence, the portion of the leave that qualifies under FMLA may be counted as FMLA leave. But see Ragsdale v. Wolverine World Wide, Inc., supra. VIII. ABILITY TO DISCIPLINE AND TERMINATE

Upon return from FMLA leave, an employee must be restored to the employee’s original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employer may not interfere with or restrain or deny the exercise of any right provided under the FMLA. Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; nor can FMLA leave be counted under “no fault” attendance policies. In addition, an employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave. Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid “key” employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must:

• notify the employee of his/her status as a “key” employee in response to the employee’s notice of intent to take FMLA leave;

• notify the employee as soon as the employer decides it will deny job restoration, and explain the reasons for this decision;

• offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice; and

• make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration.

A “key” employee is a salaried “eligible” employee who is among the highest paid ten percent of employees within 75 miles of the work site. The FMLA is also subject to retaliation laws. To establish a prima facie case of FMLA retaliation, a plaintiff must show she was engaged in activity protected under the FMLA and a causal connection exists between that activity and the employer’s action. According to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), the plaintiff must first make a prima facie showing of retaliation, after which the defendant may proffer a legitimate, non-retaliatory reason for adverse actions. If the defendant offers such reasons, the plaintiff must present evidence that the defendant’s reasons are unworthy

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of belief in order to carry out his or her ultimate burden of establishing intentional retaliation. VanMeveren v. Whirlpool Corp., 2003 U.S. App. LEXIS 10742 (10th Cir. May 29, 2003) (citing Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1263 (10th Cir. Utah 1998)). It is unlawful for any employer to discharge or discriminate against an employee for:

1. opposing any practice made unlawful by the FMLA;

2. filing a charge or instituting a proceeding under the FMLA;

3. giving information in connection with an inquiry or proceeding relating to a right provided under the FMLA; or

4. testifying in an inquiry or proceeding related to a right provided under the FMLA.

The employer should have documentation regarding every personnel decision, and the reasons for such decisions.

1. Ensure that all personnel actions are documented and kept in each employee’s personnel file. This should include such things as warnings for unexcused absences and tardiness, performance evaluations, and any other decisions that impact an employee’s work performance.

2. Ensure that all persons responsible for supervising employees record all disciplinary actions taken against individual employees.

3. Ensure that personnel documentation is retained for at least three years following the end of the employment relationship with an employee.

RECENT CASES INTERPRETING ABILITY TO DISCIPLINE AND TERMINATE

Automatic termination policy constitutes a non-retaliatory reason. VanMeveren v. Whirlpool Corp., 2003 U.S. App. LEXIS 10742 (10th Cir. May 29, 2003). Whirlpool maintained an automatic termination policy for employees with seven unexcused absences. Vanmeveren had six such absences before she missed work on February 9 pursuant to a previously granted leave request. Then, on February 15, she arrived at work five hours late. When Vanmeveren requested that her February 9 leave be an FMLA leave and her February 15 leave be considered partial, Whirlpool terminated her. Vanmeveren brought suit alleging FMLA retaliation and won a jury verdict. However, the district court then granted Whirlpool judgment as a matter of law. Affirming the district court decision, the Tenth Circuit found that Vanmeveren’s unexcused seventh absence on February 15 provided Whirlpool with a legitimate, non-retaliatory reason for her termination.

Employer’s policy against working other jobs during FMLA leave is acceptable basis for termination.

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Pharakhone v. Nissan N. Am., Inc., 324 F.3d 405 (6th Cir. April 2, 2003). Pharakhone notified Nissan that he would need to take leave at the end of December to care for his wife and baby and to help manage his restaurant. Nissan informed Pharakhone of its policy prohibiting Pharakhone from working another job during his FMLA leave. The parties disputed exactly when Pharakhone learned of the policy, but agreed that after Pharakhone learned of the policy he continued to work at the restaurant and was terminated upon his return to Nissan. Pharakhone brought an FMLA claim. The issue arose on Pharakhone’s appeal from a district court order granting Nissan’s motion to dismiss. The Sixth Circuit found that Nissan terminated Pharakhone for a violation of company policy, not because he took FMLA leave. Because Pharakhone could not demonstrate that his taking leave was a “negative factor” in Nissan’s decision to discharge him, the Sixth Circuit affirmed the trial court’s dismissal.

Suicide attempt protected by FMLA. Chandler v. Specialty Tires of Am. (Tenn.), Inc., 283 F.3d 818 (6th Cir. 2002). Chandler was terminated from her job as a personnel assistant while convalescing after a suicide attempt. While Chandler was in a hospital receiving treatment, she kept in close contact with the plant manager. She informed him what had happened and she needed time off for medical treatment. The manager agreed to place her on paid leave. Her employer did not indicate that her job was in jeopardy. Chandler’s immediate supervisor, believing that her behavior demonstrated a lack of responsibility, concluded that he could no longer trust Chandler to handle the duties of her position and decided to terminate her employment. While he admitted that he knew that she had been granted medical leave, he testified that he based his decision entirely on what he characterized as Chandler’s irresponsible act in taking an overdose of pills. Chandler had been preparing to return to work and received a termination letter from her employer. She filed suit in the Eastern District of Tennessee, alleging wrongful termination under the FMLA and the Tennessee Handicap Act. At trial, the jury returned a verdict in her favor, awarding her liquidated damages in the amount of $36,652.02, and attorneys’ fees and costs in the amount of $47,320.48. The Tenth Circuit held that there was sufficient evidence to support a jury verdict because a reasonable jury could have concluded from the evidence that the employer terminated the employee for exercising her rights under the FMLA, and did so unreasonably.

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Employee on FMLA leave has same job protection as other employees. McBride v. Citgo Petroleum Corp., 281 F.3d 1099 (10th Cir. 2002). The Tenth Circuit held that an employee who requests or is on FMLA leave has no greater protection against his or her employment being terminated for reasons not related to his or her FMLA request or leave than he or she did before submitting the request. Thus, an employee may be terminated if the action would have been taken in the absence of the FMLA request for leave. The FMLA is violated only when an employee is not restored for reasons related to the request for or the taking of FMLA leave. McBride was diagnosed with ADD and severe depression. At all relevant times she was under the care of a physician. Meanwhile, her supervisor met with her four times regarding deficiencies in her work performance including failure to process invoices within 30 days, failure to report to work on time, and failure to be at her desk during working hours. Her supervisor presented her with a letter that warned failure to achieve immediate and sustained improvement will result in future discipline up to and including termination. Thereafter, McBride was on medical leave of absence for serious and debilitating depression. Her employer granted her leave and she returned to work in approximately 60 days. During her medical leave, her employer discovered several problems with her job performance of which he was not previously aware. When she returned from medical leave, McBride was notified of the discovered work deficiencies. She failed to give a satisfactory answer when confronted with the deficiencies and she was sent home with pay and was subsequently terminated.

Temporal relationship sometimes sufficient for prima facie discrimination. Smith v. Allen Heath Sys., Inc., 302 F.3d 827 (8th Cir. Iowa 2002). Smith worked as an administrative secretary, required to acknowledge each donation to the Memorial Foundation of Allen Hospital with a thank-you note and receipt. Well before her FMLA leave on January 1, 1999, Justis, the executive director, confronted Smith with complaints from donors who had not received timely acknowledgements. Just before taking leave, Smith left a stack of unfinished work on her chair. On January 6 another employee found the unfinished stack of work that dated back to November 4, 1998. On January 14, Justis terminated Smith. Smith sued on the theory that Justis retaliated against Smith for exercising her FMLA rights. On appeal from summary judgment for Allen, the Eighth Circuit held that the close temporal relationship between Smith’s January 1 leave and her January 14 termination “barely” sufficient to establish causation, completing Smith’s prima facie case. However, Allen came forward with evidence of a nondiscriminatory reason for its treatment, shifting the burden back to Smith to prove pretext. Smith could not establish that the proffered reason was pretextual. Accordingly, the Eighth Circuit affirmed summary judgment in favor of Allen.

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Abrams v. Millikin & Fitton Law Firm, 267 F. Supp. 2d 868 (S.D. Ohio 2003). A federal district court denied the law firm employer’s motion for summary judgment and found that the employee had raised an issue of fact regarding whether a causal relationship existed between her use of FMLA leave and her termination, noting that her discharge occurred less than three months after she began her third FMLA leave and that firm managers complained about her attendance. Arbia v. Owens-Illinois, Inc., 2003 U.S. Dist. LEXIS 9429 (M.D.N.C. June 4, 2003). Employee was allowed to proceed to trial on her FMLA retaliation claim where she received a written reprimand because of absences that had been previously excused ten days after returning from her approved FMLA leave. Camp v. Soo Line R.R. Co., 2003 U.S. Dist. LEXIS 2711 (D. Minn. Feb. 20, 2003). Camp had a history of attendance problems preceding his FMLA leave, bringing about a company investigation and formal hearing regarding the absences. Two weeks after the investigation began, Camp requested FMLA leave on August 22, 2000. The employer granted leave on August 24, 2000, but terminated Camp on September 1, 2000, as a result of the investigation. Camp brought action for retaliatory discharge in violation of 29 U.S.C. § 2615(a)(1), and the issue arose on the employer’s motion for summary judgment. Following Smith v. Allen Health Sys. Inc., 392 F.3d 827 (8th Cir. 2002), the court found the close temporal proximity between Camp’s requested leave and his termination sufficient to establish a prima facie case. The employer clung to excessive absenteeism as its nondiscriminatory reason for the termination, shifting the burden back to Camp to prove excessive absenteeism pretextual. Camp relied on a report by the City of St. Paul Department of Human Rights cataloguing absentee records of several employees whose attendance records were worse than Camps, but had not been terminated. The court found that report, along with the close temporal proximity, sufficient to resist summary judgment.

Visiting but not providing care for sick relative is not an FMLA-protected activity.

Fioto v. Manhattan Woods Golf Enters., LLC, 270 F. Supp. 2d 401 (S.D.N.Y. 2003). Overturning a jury award in favor of the employee, a federal district court ruled that a golf club did not violate the FMLA when it fired a sales manager for taking a day off of work to visit his mother in the hospital while she had brain surgery. According to the court, merely visiting a relative and not providing physical or psychological care is not a protected activity under the FMLA.

Possible individual liability against public official for alleged FMLA violations. Johnson v. Fayette County, 271 F. Supp. 2d 1068 (W.D. Tenn. 2003).

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The district court found that a plain-language reading of the FMLA showed that Congress intended for individuals to be liable for FMLA violations. Moreover, the Fair Labor Standards Act, from which the FMLA borrows the definition of “employer,” supports this interpretation. The district court denied defendant public official’s motion for summary judgment and ruled that plaintiff county employee could proceed with her claim against him and the county, finding that the evidence was inconclusive as to whether the public official was an “officer with operational control” of the county that employed him.

Terminating employee with recurring absences did not violate the FMLA. Gonzalez v. City of Minneapolis, 267 F. Supp. 2d 1004 (D. Minn. 2003).

A federal district court granted the employer’s summary judgment motion on the charge of FMLA retaliation, holding that the employee who has a history of tardiness, absenteeism, and sick leave abuse failed to establish a causal connection between his FMLA leave and discharge.

Discharge of employee who violated company policies upheld. Jarjoura v. Ericsson, Inc., 266 F. Supp. 2d 519 (N.D. Tex. 2003). A federal district court decided that an employee who violated company policy by running up more than $10,000 worth of personal charges on his employer’s credit card and using the employer’s mobile phone for personal calls could not establish a prima facie showing of retaliatory discharge for taking FMLA leave.

Employer must reinstate after FMLA leave. Brenlla v. LaSorsa Buick Pontiac Chevrolet, Inc., 2002 U.S. Dist. LEXIS 9358 (S.D.N.Y. May 28, 2002). Brenlla underwent a quadruple bypass operation and subsequently was out of work for approximately three months. When she returned to work to resume her position, her employer fired her. At trial, the jury awarded Brenlla $320,000 in back pay, benefits, front pay, and liquidated damages since she was denied reinstatement after returning from FMLA leave. Her employer informed her that the job had been consolidated with another administrative position for economic reasons; however, the company hired a new employee shortly thereafter. The court upheld the jury verdict and granted her motion for prejudgment interest on a back pay award and for attorney’s fees and costs.

Employer must treat FMLA leave employee same as others. Connel v. Hallmark Cards, Inc., 2002 U.S. Dist. LEXIS 1945 (D. Kan. Feb. 1, 2002), rev.den., 2002 U.S. Dist. LEXIS 1945 (D. Kan. 2002). The district court held that Connel’s claim that her discharge was in retaliation for exercising her FMLA rights presented sufficient evidence to proceed to trial. Plaintiff had been

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employed with defendant since 1976. For at least 13 years prior to plaintiff’s termination, plaintiff had been active in 4H. She and her family had participated in and attended the Leavenworth County Fair. While she was on FMLA leave in 1999, plaintiff attended the Fair and camped at the Fairgrounds. In 2000, four days before the Fair, plaintiff called her supervisor seeking leave due to a migraine. Her employer provided her with FMLA paperwork and plaintiff provided her employer with an FMLA medical certification form. While on FMLA leave in 2000, plaintiff camped at the Fairgrounds during the entire week and attended Fair activities throughout the week. After learning that Connel had attended the Fair, her supervisor ordered her back to work to complete an investigation. She was discharged. Connel sued her former employer claiming that her discharge had been in retaliation for taking leave. The district court found Hallmark had nondiscriminatory reasons for discharging Connel, but reasoned that because Hallmark stopped Connel’s short-term disability payments and ordered her to return to work before she had passed a fitness for duty test, as the company ordinarily required, “an inference of retaliation” could arise.

Discharge of employee who misused FMLA leave and lied about it upheld. McDaneld v. Eastern Municipal Water Dist. Bd., 109 Cal. App. 4th 702, 135 Cal. Rptr. 2d 267 (Cal. App. 4th Dist. 2003), rev. den., 2003 Cal. LEXIS 6686 (Cal. Sept. 10, 2003). A state appellate court upheld the discharge of a municipal employee who claimed that he didn’t know that he was barred from golfing and installing sprinklers while on FMLA leave or that he was supposed to return to work when the need for leave ended. The court also noted that the employee’s statement that he remained home an extra day to help his pregnant wife who had hurt her back turned out not to be true.

FMLA does not make employee immune from termination based on subsequent, unprotected absence.

Parsons v. Orange County Sanitation Dist., 2003 Cal. App. Unpub. LEXIS 578 (2003) (unpublished). On May 22, 1998, Parsons requested an FMLA leave of more than 18 weeks through September 28, 1998. The employer first granted leave only through July 13, 1998, but later extended leave through August 11, 1998. When Parsons failed to return at the expiration of FMLA leave, he was terminated. Because Parsons failed to raise the FMLA issue below, the court noted it would usually find Parsons had waived the FMLA issue. Nevertheless, the court went on to address the claim. Because Parsons was not protected by the FMLA after August 11, 1998, subsequent absences provided the employer legal grounds for termination.

FMLA does not protect employee from losing job if would have lost it anyway. Tomlinson v. Qualcomm, Inc., 97 Cal. App. 4th 934 (Cal. App. 4th Dist. 2002), rev. den., 2002 Cal. LEXIS 4577 (Cal. July 10, 2002).

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Neither the FMLA nor the California Family Rights Act protects an employee from losing her job if she would have lost it anyway. Employees returning from leaves of absence are placed in positions with the same or similar job content, status, and pay as the previously-held position. Tomlinson, an at-will employee of Qualcomm, Inc., received a family leave of absence from her employer as provided by the California Family Rights Act and Qualcomm’s personnel policy. During her family leave of absence, her employer implemented a company-wide reduction in workforce. Tomlinson was among the more than 300 employees whose employment was terminated. Tomlinson filed suit arguing that the CFRA immunized persons on family leave from employment termination. Alternatively, she argued that Qualcomm’s personnel policy superseded her at-will employment agreement by guarantying that she would be reinstated to her job after completing her family leave. The court found that Tomlinson’s previously-held position was at-will, permitting employment termination for company-wide workforce reductions. Tomlinson did not have a position that was insulated from layoff; therefore, she was only entitled to return to her terminated position. The California State Court of Appeals affirmed the California Superior Court decision non-suiting all Tomlinson’s claims, except her discrimination claim, and the jury rejected her discrimination claim, and the court entered judgment in favor of Qualcomm. See also Carlson v. Rent-A-Center, Inc., supra; Faris v. Williams WPC-I, Inc., supra; Jarvis v. Gerstenslager Co., supra; Strykowski v. Rush N. Shore Med. Ctr., supra; and Urban v. Dolgencorp of Tex., Inc., supra. IX. EQUIVALENT POSITION

At the conclusion of FMLA-protected leave, employees are to be restored to the same position or an equivalent position. An equivalent position must have equivalent benefits, pay, and other terms and conditions of employment. 29 C.F.R. § 825.214(a). A position that is merely comparable or similar is not enough. It must involve “the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a). The requirement of “equivalent terms and conditions of employment” includes the following:

1. the employee must be reinstated to the same worksite or one that is geographically approximate to that where he or she had been employed;

2. the employee is ordinarily entitled to return to the same shift or the same or an equivalent work schedule;

3. an employer may accommodate an employee’s request to be restored to a different shift, schedule, or position that better suits the employee’s personal needs on return from leave, or to offer a promotion to a better position; and

4. the employee must have the same or an equivalent opportunity for bonuses, profit sharing, and other similar discretionary and non-discretionary payments.

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If the employee is unable to perform an essential function of the position because of a physical or mental condition (including the continuation of a serious health condition), the employee has not right to be restored to the position under the FMLA. However, the ADA may dictate further employer obligations. The DOL says that an employer has an obligation to place an employee in the same or an equivalent position even where no vacancy exists. DOL stated, “the statute does not permit an employer to replace an employee who takes FMLA leave or restructure a position and then refuse to reinstate the returning employee on the ground that no position exists.” 60 Fed. Reg. 2213 (Jan. 6. 1995). An employer may not refuse to reinstate an employee in the same position because the employee exercised FMLA rights.

RECENT CASES INTERPRETING EQUIVALENT POSITION

Circuits are split on burden of proof in reinstatement cases. Parker v. Hahnemann Univ. Hosp., 234 F. Supp. 2d 478 (D. N.J. 2002). In Parker, the plaintiff took FMLA leave and during that leave the defendant eliminated her position. When she returned she was offered alternatives, but refused them as unacceptable. Parker brought action alleging her employer had denied her FMLA right to reinstatement. The court looked to 29 C.F.R. § 825.216(a)(1), which requires that an employer denying restoration to employment must show that the employee would not otherwise have been employed at the time the reinstatement was requested. The core issue became who bore the burden of proof with regard to whether the employee would have lost her job had she not taken leave. After finding conflict between circuits, the court determined that the employer bears the burden of proving that Parker’s position would have been eliminated even if she had not taken FMLA leave. On cross-motions for summary judgment, the court denied both motions because questions of material fact remained about the employer’s decision to eliminate the position.

Employee’s wages and benefits must stay same, even if temporarily reassigned. Green v. New Balance Ath. Shoe, Inc., 182 F. Supp. 2d 128 (D. Me. 2002). Green sued her former employer for discriminating against her because she was pregnant. The court held that reducing her hourly rate of pay while she was assigned to a different job because she was pregnant violated the FMLA. While pregnant, Green took leave for medical conditions caused by pregnancy. When she returned to work, she was assigned to a different job at a lower hourly rate of pay. Although the FMLA permits an employer to reassign her temporarily, the FMLA requires that her wages, benefits, and terms of employment remain the same. Before getting pregnant, Green had been working as a floor person, lifting and transferring heavy boxes. When she got pregnant she got a note from her doctor which limited her lifting ability to 25 lbs. In light of her request for a change of position, her employer shifted

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her to a shoe assembly line which required extended periods of standing and also a reduced rate of pay.

Bonuses may not be prorated and reduced by time taken for FMLA leave. Dierlam v. Wesley Jessen Corp., 222 F. Supp. 2d 1052 (N.D. Ill. 2002). After being offered a “stay bonus” for actively working from November 1, 2000, through September 30, 2001, during the acquisition of Wesley by another company, Dierlam obtained FMLA leave for adoption of a child. Wesley prorated and reduced Dierlam’s bonus in the amount of $8,407.70, reflecting her 12-week leave. The court held that, upon granting Dierlam’s request for leave, Wesley triggered Dierlam’s right to return from FMLA leave and be restored to an equivalent position, including equivalent pay and benefits. Accordingly, the court granted Dierlam’s motion for summary judgment, awarding her the withheld $8,407.70. X. OTHER RELATED ISSUES

A. Eleventh Amendment Immunity.

The FMLA defines an employer to include a state or state entity. See 29 U.S.C. § 2611(3), 203(e)(2)(c). Furthermore, the FMLA enforcement provision provides that “any employer” who violates the FMLA shall be liable for a variety of penalties including “wages, salary, employment benefits . . . liquidated damages . . . and for such equitable relief as may be appropriate . . ..” 29 U.S.C. § 2617. Until recently, circuits remained split on the issue of Eleventh Amendment immunity. As many as seven Courts of Appeal had held that the FMLA was not enacted pursuant to a valid exercise of Congress’ Section 5 power and, thus, states generally are constitutionally protected from such suits. Laro v. New Hampshire, 259 F.3d 1, 11 (1st Cir. 2001); Townsel v. State, 233 F.3d 1094, 1096 (8th Cir. 2000); Chittister v. Deptment of Community & Econ. Dev., 226 F.3d 223, 229 (3d Cir. 2000); Kazmier v. Widmann, 225 F.3d 519, 526, 529 (5th Cir. 2000); Sims v. University of Cincinnati, 219 F.3d 559, 566 (6th Cir. 2000); Hale v. Mann, 219 F.3d 61, 69 (2d Cir. 2000); Garrett v. University of Ala. Bd. of Trustees, 193 F.3d 1214, 1220 (11th Cir. 1999), reversed on other grounds, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001). Breaking the split, the Supreme Court recently held in Nevada Dep’t of Human Res. v. Hibbs, 123 S. Ct. 1972 (2003), that 29 U.S.C. § 2612(a)(1)(C) of the FMLA was enacted pursuant to a valid exercise of Congress’ Section 5 power, affirming the Ninth Circuit holding that Hibbs could maintain an FMLA suit against a state agency. The scope of Hibbs is still somewhat uncertain as Hibbs involved 29 U.S.C. § 2612(a)(1)(C), which provides for leave to care for a sick family member. Of the above-cited Courts of Appeal decisions, only Kazmier expressly involves 29 U.S.C. § 2612(a)(1)(C). See Kazmier, 225 F.3d at 525-26. The other cases either failed to state which provision of the FMLA is at issue or involved only 29 U.S.C. § 2612(a)(1)(D), which provides for ordinary sick leave, i.e., leave occasioned by the employee’s own illness. The difference may be significant because 29 U.S.C. § 2612(a)(1)(C) can be defended as an attempt to remedy gender discrimination whereas other entitlements under 29 U.S.C. §2612(a) might not.

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RECENT CASES INTERPRETING ELEVENTH AMENDMENT IMMUNITY

FMLA suit against state agency possible. Nev. Dep’t of Human Res. v. Hibbs, 123 S. Ct. 1972, 155 L. Ed. 2d 953, 2003 U.S. LEXIS 4272 (U.S. 2003). Hibbs was on FMLA leave to care for his ailing wife. When the Nevada Department of Human Resources cut his FMLA leave short and terminated him, Hibbs brought action in federal district court alleging violation of the FMLA. After the district court granted defendant’s motion for summary judgment on Eleventh Amendment immunity grounds, the Ninth Circuit reversed. Affirming, the U.S. Supreme Court held six-to-three that an individual may sue a State for money damages in federal court for violation of §2612(a)(1)(C). The Rehnquist majority, including Justices O’Connor, Souter, Ginsberg, and Breyer, acknowledged that the Constitution does not provide for federal jurisdiction over suits against non-consenting states. However, Congress may abrogate state immunity where (1) it makes its intention to abrogate state immunity “unmistakably clear” in the language of the statute and (2) it acts pursuant to a valid exercise of its Fourteenth Amendment, Section 5 power. Because the FMLA explicitly provides for damages against any public employer in any federal or state court, the decisive issue was whether Congress acted within its constitutional authority in enacting the FMLA. The Court found adequate constitutional foundation in Section 5 of the Fourteenth Amendment. Section 5 allows for prophylactic legislation above and beyond the specific proscriptions of the Fourteenth Amendment. The persistence of unconstitutional gender discrimination by the states justified Congress’ FMLA, which is aimed at protecting the right to be free from gender-based discrimination in the workplace. The fact that Nevada as an individual state may be ahead of Congress in its provision of gender-neutral family benefits was of no consequence. Rather, in light of the vast shortcomings of the states as an entity, Congress was justified in passing the FMLA as prophylactic Section 5 legislation. Accordingly, the Court affirmed the Ninth Circuit ruling. Justice Stevens concurred in judgment, insisting that the plain language of the Eleventh Amendment posed no barrier to the suit. The only potential barrier was a common-law “second Eleventh Amendment,” which Congress properly abrogated pursuant to the Commerce Clause. Dissenting, Justice Scalia found prophylactic action pursuant to Section 5 inappropriate where, as here, the individual state against which action is taken has not been found individually responsible for discrimination. Scalia found error in the majority’s treatment of “‘the states as some sort of collective entity which is guilty or innocent as a body.” Nevada had a right to demand a showing that it had acted in violation of the Fourteenth Amendment. In a separate dissent joined by Justices Scalia and Thomas, Justice Kennedy denounced Congress’s attempt to “define the substantive content of the Equal Protection Clause.” Congress is limited to defining remedies for Equal Protection violations. Because the FMLA is “not a

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remedy but a benefit program,” Congress crossed the line into the substantive content of the Equal Protection clause. Justice Kennedy found the FMLA invalid to the extent it allows for private suits against unconsenting states.

State waives 11th Amendment immunity when it removes case to federal court.

Lapides v. Bd. of Regents, 122 S. Ct. 1640, 152 L. Ed. 2d 806, 535 U.S. 613 (2002). In Lapides, petitioner, a professor in the Georgia State University system, filed a state court suit against respondents, the system’s Board of Regents, and University officials in their personal capacities and as state agents, alleging that the officials had violated state tort law and 42 U.S.C. § 1983 when they placed sexual harassment allegations in his personnel files. The state removed the case to federal district court and then sought dismissal. Conceding that a state statute had waived Georgia’s sovereign immunity from state lawsuits in state court, the state claimed Eleventh Amendment immunity from suit in the federal court. The district court held that Georgia had waived such immunity when it removed the case to federal court. Reversing, the Eleventh Circuit found that, because state law was unclear as to whether the state attorney general had the legal authority to waive Georgia’s Eleventh Amendment immunity, the state retained the legal right to assert immunity, even after removal. The United States Supreme Court recognized “it would seem anomalous or inconsistent” for a state to invoke federal jurisdiction, claiming the federal courts have power over its claim, only to then claim Eleventh Amendment immunity, denying federal judiciary power over its claim. For that reason, voluntary appearance in federal court amounts to a waiver of Eleventh Amendment immunity. Accordingly, the Court held that a state waives its Eleventh Amendment immunity when it removes a case from state court to federal court. Montgomery v. Maryland, 122 S. Ct. 1958, 152 L. Ed. 2d 1019, 533 U.S. 1075 (2002). A state may not reverse itself and assert immunity after it has explicitly waived its constitutionally-guaranteed immunity from FMLA claims filed by an employee. In Montgomery v. Maryland, the Supreme Court vacated a decision by the Fourth Circuit that allowed Maryland to rescind an earlier waiver of the immunity granted it under the Eleventh Amendment. The Fourth Circuit had held that the plaintiff’s employer, the Maryland Division of Corrections, and her individual supervisors were constitutionally immune from her lawsuit. The Supreme Court vacated the Fourth Circuit’s judgment and remanded the case for further consideration in light of Lapides v. Bd. of Regents, 122 S. Ct. 1640 (2002), where the Court held that “a state waives its Eleventh Amendment immunity when it removes a case from state court to federal court.” Montgomery leaves Maryland vulnerable to Montgomery’s claim that, after she returned to work from FMLA leave, she was improperly reassigned to a less desirable job.

Hibbs holding might not apply to employee medical leave. Fields v. Virginia, 2003 U.S. Dist. LEXIS 10107 (W.D. Va. June 16, 2003). Fields, a Virginia Department of Corrections employee, sought medical leave but was denied. When he brought suit pursuant to the FMLA, the Commonwealth initially moved to

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dismiss on grounds of state immunity. After the Supreme Court decision in Nev. Dep’t of Human Res. v. Hibbs, 123 S. Ct. 1972, however, the Commonwealth conceded that its motion to dismiss ought to be denied. In a footnote, the court questioned the applicability of Hibbs, noting that the validity of Congress’s abrogation of Eleventh Amendment immunity with regard to family leave, See 29 U.S.C. §2612(a)(1)(C), may be different than the validity of Congress’s abrogation of the Eleventh Amendment immunity with regard to the employee medical leave requirement, See 29 U.S.C. § 2612(a)(1)(D). Regardless, the court declined to raise the immunity defense sua sponte after the defendant had conceded.

B. Statute of Limitations.

The normal limitations for an action by an employee against an employer under the FMLA is two years. 29 U.S.C. § 2617(c)(1). If the employer engages in a willful violation of the Act, however, the limitations period is three years. 29 U.S.C. § 2617(c)(2).

Employer substituting its judgment for doctor’s may be willful violation of FMLA. Williams v. Schuller Int’l, Inc., 2002 U.S. App. LEXIS 2071 (6th Cir. 2002) (unpublished decision). Williams brought suit against her employer almost three years after the date of her discharge. Since Williams filed her complaint more than two years after the date of her discharge, her lawsuit is barred by the statute of limitations unless there was a “willful violation.” Williams had been working for Schuller for 12 years when her mother died and Williams experienced “acute situation depression reaction” as a result. She had trouble sleeping and began missing work. Williams’s request for leave was denied. Although her supervisor was aware that her request potentially fell within the Act, he felt that Williams’s not wanting to come to work and having difficulty sleeping did not qualify her for protection under the Act. Her employer was apprised of Williams’s need for leave on at least two additional occasions, and she left a message saying that her own doctor had placed her on medical leave. Williams was discharged for excessive absenteeism and she sued her employer. The Sixth Circuit concluded that there are genuine issues of material fact as to willfulness, and therefore vacated the challenged summary judgment which was entered in favor of her employer on statute of limitation grounds at the district court level.

Allegation that employee was disabled with depression and employer knew may constitute willful violation of FMLA.

Kamtaprassad v. Chase Manhattan Corp., 2001 U.S. Dist. LEXIS 21532 (S.D.N.Y. Dec. 28, 2001). Kamtaprassad claims that her employer terminated her employment because she took leave for depression. While she was on medical leave, her doctor sent to Chase four separate letters informing that she was disabled by depression and requested that she reenter the workforce part-time. Her employer informed her that her position had been filled and gave her a two-month unpaid leave to seek alternative employment. Less than two months into her job

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search, Kamtaprassad received a termination letter from Chase. Kamtaprassad brought suit against Chase, alleging violations of the ADA, the New York City Human Rights Law, and the FMLA. Chase moved to dismiss the FMLA claim on the basis that it is time barred and that it fails to state a claim. The FMLA contains two statute of limitations provisions; a claim must be filed three years from the last event constituting a willful violation or two years from the last event constituting a violation in all other cases. Since Kamtaprassad’s second amended complaint alleges a willful violation, the three-year limitations period applies. Also, Chase argued that Kamtaprassad’s second amended complaint failed to state a claim for relief under the FMLA. Chase did not dispute that Kamtaprassad was an eligible employee nor that it was a covered employer. Rather, Chase contended that Kamtaprassad had failed to specify “any serious health condition” that would entitle her to protection of the FMLA, and to allege that she gave adequate notice of her intention to treat her absences as FMLA leave. The court found that Kamtaprassad’s second amended complaint makes adequate allegation that she is disabled with depression and that she went out on a disability leave due to a medical condition and that her doctor wrote letters to defendant during the leave. These allegations sufficiently allege a serious health condition.

C. Military Leave.

The primary federal law applicable to employers whose employees undertake military service is the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C.A. §§ 4301-4330. The USERRA allows employees to take leave from work for military service while protecting jobs and benefits. The statute applies to all employers, both public and private regardless of size. In sum, the USERRA prohibits employers from discriminating against individuals who perform military service and forbids retaliation against such employees. “Uniformed Services” is defined broadly to include the U.S. Army, Navy, Air Force, Marines, Coast Guard, Armed National Guard, Air National Guard, the Commission Corps of the Public Health Service, and any other category so designated by the President of the United States. New rules regarding USERRA were adopted in January, 2006. The rules provide greater protection to military personnel than were previously enjoyed under the statute. The rules provide the following:

1. in calculating the 12 month period for military personnel, an employer must give an employee credit for any time that he/she would have been employed but for the military service;

2. each month served performing military service counts as a month of

employment for FMLA purposes; 3. 12 months of employment need not be consecutive to meet FMLA

requirements; 4. hours of service that would have been credited to the employee but for

military service must be credited to the employee for purposes of calculating eligibility; and

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5. employers should use an employee’s prior work schedule to actually determine hours that would have been worked.