Family Medical Leave Act

This chapter will provide an overview of the law regarding the Family and Medical Leave Act (“FMLA”). Enacted in 1993, the FMLA provides eligible employees with 12 weeks of unpaid leave in a 12 month period. The law prohibits employers from discriminating against employees for exercising their rights under the law and also enables employees to sue employers for interference with their FMLA rights. Perhaps the most important aspect of the law is its guarantee of job reinstatement at the end of the 12 week period of FMLA leave. “The FMLA provides that it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the Act. 29 U.S.C. § 2615(a)(1). Under the Act, eligible employees may take twelve work weeks of leave within a twelve month period in the event that the employee suffers from a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). At the conclusion of the qualified leave period, the employee is entitled to reinstatement to the position the employee previously held or to an equivalent one with the same terms and benefits that existed prior to the exercise of leave.” 29 U .S.C. § 2614(a). O’Grady v. Catholic Health Partners Services, 2002 WL 221583, *4 (N.D.Ill.,2002).

OVERVIEW OF FMLA
The FMLA provides employees with up to 12 work weeks of unpaid leave in a 12 month period. The FMLA was enacted to ensure that employees would have the rights to flexible medical leave. “In enacting the FMLA, ‘Congress sought to mandate a flexible leave allotment for medical and family reasons for all men and women working at least 1250 hours a year at firms employing 50 or more employees during at least 20 weeks of the year.’ Price v. City of Fort Wayne, 117 F.3d 1022, 1023 (7th Cir.1997).” Stansberry v. Uhlich Children’s Home, 264 F.Supp.2d 681, 689 (N.D.Ill.,2003). The law prohibits employers from denying an employee their FMLA rights and also prohibits discrimination for the exercise of such rights. “The FMLA makes it unlawful for an employer to interfere with, restrain, or deny an employee’s FMLA rights, or to discriminate or retaliate against an employee for exercising such rights. 29 U.S.C. § 2615(a)(1), (2); Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th Cir.1999).” Jarjoura v. Ericsson, Inc., 266 F.Supp.2d 519, 528 (N.D.Tex.,2003).

There are two prongs of the FMLA, claims regarding interference and claims regarding discrimination or retaliation. An interference claim would in essence be one in which an employee claims that the employer failed to provide the employee with a right guaranteed by the FMLA, for instance, the right to reinstatement or the 12 weeks of leave to which the employee is entitled. A discrimination or retaliation claim would be one in which the employee claims, for instance, that they took their 12 weeks of FMLA leave and then the employer took some retaliatory action against them for the exercise of their rights such as termination and/or demotion. Courts have recognized that the FMLA creates two essentially distinct causes of action. See, e.g., Bachelder v. America West Airlines, Inc., 259 F.3d 1112 (9th Cir.2001); Strickland v. Water Works and Sewer Board of the City of Birmingham, 239 F.3d 1199 (11th Cir.2001). First, it is unlawful under the FMLA for an employer “to interfere with, restrain, or deny the exercise of or the attempt to exercise” any right secured by the Act. 29 U.S.C. § 2615(a)(1) (2002). Claims pursued under this provision are frequently referred to as “interference” claims. Marrero v. Camden Cty. Bd. of Social Services, 164 F.Supp.2d 455, 463 (D.N.J.2001). Second, the FMLA makes it unlawful for an employer to “discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by [29 U.S.C. § 2615].” 29 U.S.C. § 2615(a)(2) (2002). Such claims are usually termed “discrimination” claims.” Peter v. Lincoln Technical Institute, Inc., 255 F.Supp.2d 417, 438 (E.D.Pa.,2002). See also, Pashoian v. GTE Directories, 208 F.Supp.2d 1293, 1301 (M.D.Fla.,2002)(“Although different types of claims are not clearly delineated in the actual language in the FMLA, the Eleventh Circuit, as well as other courts, have held that the FMLA creates two distinct types of claims: (1) interference claims under 29 U.S.C. § 2615(a)(1), in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the FMLA, and (2) retaliation claims under 29 U.S.C. § 2615(a)(2), in which an employee asserts that his employer discriminated against him because he engaged in activity protected under the FMLA. Strickland v. Water Works and Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1206-07 (11th Cir.2001).”); Parker v. Hanhemann University Hosp., 234 F.Supp.2d 478, 489 (D.N.J.,2002) (“For plaintiff’s first claim that she was deprived her entitlement to reinstatement under the FMLA, she will only have to prove that she was denied a right under the FMLA. For defendants to prevail, they will have to prove that she would have been denied the right even if she had not taken the FMLA leave.”).

Since the two prongs of the FMLA create two separate causes of action each cause of action has a separate requirement for establishing the elements necessary to prove the case. “In summary, this Court holds that a different burden of proof applies to plaintiff’s two FMLA claims, even though their basis lies in the same set of facts. For plaintiff’s first claim that she was deprived her entitlement to reinstatement under the FMLA, she will only have to prove that she was denied a right under the FMLA. For defendants to prevail, they will have to prove that she would have been denied the right even if she had not taken the FMLA leave. For plaintiff’s second claim that she was not reinstated because the defendants discriminated against her for taking FMLA leave, she will have to present a prima facie case of discrimination and will have to show that any legitimate business reasons articulated by the defendant to justify the action are pretextual.” Parker v. Hanhemann University Hosp., 234 F.Supp.2d 478, 489 (D.N.J.,2002).

ELEMENTS OF FMLA

Since each cause of action under the FMLA has a different standard of proof, we will analyze the elements necessary to prove a prima facie case separately.

Elements of an Interference Claim
The elements to state a prima facie case of interference with FMLA rights have been set forth by the courts. “To make out a prima facie case on a claim for interference with FMLA rights under 29 U.S.C. § 2615(a)(1), a plaintiff must establish five elements: 1) that she is an eligible employee under the FMLA; 2) that defendant is an employer as defined in FMLA; 3) that she was entitled to leave under FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied benefits to which she was entitled under FMLA. (Def. Mem., 10-11 citing Santos v. Knitgoods Workers’ Union, Local 155, No. 99 Civ. 1499, 1999 WL 397500 at *3 (S.D.N.Y. June 15, 1999), aff’d, 252 F.3d 175 (2d Cir.2001)); see also Mayo v. Columbia University, No. 01 Civ.2002, 2003 WL 1824628, *8 (S.D.N.Y. April 7, 2003); Brenlla v. LaSorsa Buick Pontiac Chevrolet, Inc., No. 00 Civ. 5207, 2002 WL 1059117 (S.D.N.Y. May 28, 2002).”Geromanos v. Columbia University , 322 F.Supp.2d 420, 427 (S.D.N.Y.,2004). See also, Parker v. Hanhemann University Hosp., 234 F.Supp.2d 478, 489 (D.N.J.,2002)(“For defendants to show that plaintiff was not entitled to reinstatement, they must show (1) that the position plaintiff held before leave would have been eliminated even if she had never taken the FMLA leave, see supra section II(B), and (2) that it offered plaintiff reinstatement in an equivalent position that she chose not to accept, Watkins v. J & S Oil Co., 164 F.3d 55, 59-60 (1st Cir.1998). An equivalent position is one which is substantially equal or similar in terms of employment benefits, pay, and other terms and conditions of employment. 29 U.S.C. § 2614(a)(1)(B); 29 C.F.R. § 825.215.”); Richardson v. Monitronics International, Inc., 2004 WL 287730, *2 (N.D.Tex.,2004) (“To present an entitlement claim under the FMLA, a plaintiff must show that (1) she is an eligible employee under the FMLA; (2) defendant is an employer subject to the requirements of the FMLA; (3) plaintiff was entitled to leave under the FMLA; (4) plaintiff gave proper notice to the defendant of her intention to take FMLA leave; and (5) the defendant denied her the benefits to which she was entitled under the FMLA. Id. at *3 (quoting Parker v. Hahnemann Univ. Hosp., 234 F.Supp.2d 478, 483 (D.N.J.2002)”).

2. Evidence of an FMLA Discrimination Case

Most discrimination cases emanate from employees claiming that employers based their employment decisions about the employee on the fact that the employee took the leave. “The FMLA prohibits employers from discriminating against employees for asserting rights under the Act. 29 U.S.C. § 2615(a)(2). This prohibition necessarily includes consideration of an employee’s use of FMLA leave as a negative factor in an employment action.” Darby v. Bratch, 287 F.3d 673, 679 (8th Cir.(Mo.),2002).

Courts have set forth the relevant elements of a prima facie case of FMLA discrimination or retaliation. “To establish a prima facie case for discrimination or retaliation under the FMLA, and to prevail in a motion for summary judgment, the plaintiff must demonstrate that: (1) she is protected under the FMLA; (2) she suffered an adverse employment decision; and either (3a) she was treated less favorably than an employee who had not requested leave under the FMLA; or (3b) the adverse decision was made because of the plaintiff’s request for leave. See Bocalbos v. Nat’l Western Life Ins. Co., 162 F.3d 379, 383 (5th Cir.1998). Sherrouse v. Tyler Refrigeration Corp., 2004 WL 1124722, *2 (N.D.Tex.) (N.D.Tex.,2004). See also, Bearley v. Friendly Ice Cream Corp., 322 F.Supp.2d 563, 572 (M.D.Pa.,2004)(“As noted above, to establish a prima facie case of retaliation under the FMLA, a plaintiff must show: (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) a causal connection exists between the adverse action and Plaintiff’s exercise of her FMLA rights.”);Green v. New Balance Athletic Shoe, Inc.,182 F.Supp.2d 128, 141 (D.Me.,2002) (“Under the FMLA, the prima facie case consists of: (1) Plaintiff’s exercise of a protected right under the FMLA; (2) a subsequent adverse employment action taken by Defendant against Plaintiff; and (3) a causal nexus between the exercise of the right and the adverse action. See, e.g., Hodgens, 144 F.3d at 161.”); Darby v. Bratch, 287 F.3d 673, 679 (8th Cir.(Mo.),2002)(“ To establish a prima facie case of FMLA retaliation, an employee must show that she engaged in activity protected under the Act, that she suffered an adverse employment action by the employer, and that a causal connection existed between the employee’s action and the adverse employment action. Richmond v. ONEOK, Inc., 120 F.3d 205, 208 (10th Cir.1997).”); Christenson v. Boeing Co., 2004 WL 2110707, *5 (D.Or.,2004)(“To establish a prima facie FMLA retaliation claim, the plaintiff must show that: “(1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; and (3) there is a causal connection between the two actions.” Washington, 110 F.Supp.2d at 1330 (citing Morgan v. Hilti, 108 F.3d 1319, 1325 (10th Cir.1997)”).

DISCUSSION

To best understand one’s rights under the FMLA, it is helpful to understand the analysis that courts use in deciding FMLA cases. In FMLA discrimination or retaliation cases, as in Title VII cases, when a plaintiff cannot provide direct evidence of discrimination under FMLA, courts allow such plaintiff to prove discrimination by the use of indirect evidence. The same burden shifting analysis as was used in the Title VII cases is applicable to the FMLA cases. “For an employee who has no direct evidence of discrimination, the familiar burden-shifting analysis applied in Title VII cases applies to FMLA cases. Chaffin, 179 F.3d at 319. Under the evidentiary analysis first developed by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Jarjoura must first set out a prima facie case of discrimination or retaliation by showing that (1) he is protected under the FMLA; (2) he suffered an adverse employment decision; and (3) other employees who did not request FMLA leave were treated more favorably than he, or that the adverse employment decision was made because of his request for leave under the FMLA. Bocalbos, 162 F.3d at 383. If Jarjoura successfully establishes his prima facie case, the burden then shifts to Ericsson to articulate a legitimate, nondiscriminatory reason for Jarjoura’s discharge. Id. If it successfully does so, then the burden shifts back to Jarjoura, and he must set forth evidence showing that Ericsson’s stated reason for its action is a pretext for discrimination or retaliation. Id. In other words, a ‘plaintiff can survive summary judgment by producing evidence that creates a jury issue as to the employer’s discriminatory animus or the falsity of the employer’s legitimate nondiscriminatory explanation.’ Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir.2002).” Jarjoura v. Ericsson, Inc., 266 F.Supp.2d 519, 528 (N.D.Tex.,2003). See also, Skrjanc v. Great Lakes Power Service Co.,272 F.3d 309, 315 (C.A.6 (Ohio),2001)(“In an FMLA case relying upon indirect evidence, we will apply the three-step process delineated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to analyze Skrjanc’s claim that he was fired in violation of the FMLA for taking a medical leave of absence. Hodgens v. General Dynamics Corp., 144 F.3d 151, 161 (1st Cir.1998) (applying McDonnell Douglas to analyze the plaintiff’s claim that he was fired in violation of the FMLA for taking sick leave)”).

Sherrouse v. Tyler Refrigeration Corp., 2004 WL 1124722, *2 ( “If the plaintiff succeeds in making a prima facie case, the burden shifts to the employer to articulate a legitimate nondiscriminatory or nonretaliatory reason for the termination. See Id. Once the employer has done so, the plaintiff must show by a preponderance of the evidence that the employer’s reason is a pretext for discrimination or retaliation. See Id.” (N.D.Tex.,2004). To establish a prima facie case for discrimination or retaliation under the FMLA, and to prevail in a motion for summary judgment, the plaintiff must demonstrate that: (1) she is protected under the FMLA; (2) she suffered an adverse employment decision; and either (3a) she was treated less favorably than an employee who had not requested leave under the FMLA; or (3b) the adverse decision was made because of the plaintiff’s request for leave. See Bocalbos v. Nat’l Western Life Ins. Co., 162 F.3d 379, 383 (5th Cir.1998). If the plaintiff succeeds in making a prima facie case, the burden shifts to the employer to articulate a legitimate nondiscriminatory or nonretaliatory reason for the termination. See Id. Once the employer has done so, the plaintiff must show by a preponderance of the evidence that the employer’s reason is a pretext for discrimination or retaliation. See Id.*3); Christenson v. Boeing Co., 2004 WL 2110707, *4 (D.Or.) (D.Or.,2004) (“The McDonnell Douglas framework also applies to FMLA retaliation claims. See Washington v. Fort James Operating Co., 110 F. Supp 2d. 1325, 1330 (D.Or.2000) (applying the McDonnell Douglas burden-shifting framework to a FMLA retaliation claim); see also Bourgo v. Canby School Dist., 167 F.Supp.2d 1173, 1179 (D.Or.2001)….This is a three-step framework. First, the plaintiff must establish a prima facie case of discrimination or retaliation. Id. at 889. If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Id. at 888. The defendant meets this burden of production if it introduces “evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509 (1993) (emphasis in original). If the employer meets this burden, “the presumption created by the prima facie case disappears.” Wallis, 26 F.3d at 892. The burden then shifts back to the plaintiff to demonstrate, with evidence beyond that required to establish the prima facie case, that the reason put forth by the employer is a pretext for what was actually a discriminatory or retaliatory employment action. Id. at 889. In order to make a sufficient showing of pretext to survive summary judgment, a plaintiff must provide “direct evidence of discrimination” or offer “substantial evidence that the employer’s proffered reasons were not reliable.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1219 (9th Cir.1998).”); Parker v. Hanhemann University Hosp., 234 F.Supp.2d 478, 492 (D.N.J.,2002) (Thus, plaintiff claiming retaliation would use the same burden-shifting analysis applied in McDonnell Douglas. Under this framework, plaintiff must first establish a prima facie case of discrimination by showing (1) that she took advantage of the protected right to leave under the FMLA, (2) that she was adversely affected by an employment action taken by defendants, and (3) the unfavorable employment action was caused by her choice to take leave under the FMLA. Then, the burden shifts to defendants to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Then, plaintiff must show that the nondiscriminatory reason given is really a pretext for actual discrimination. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); Tex. Dep’t of Cmty Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817.

ADVERSE EMPLOYMENT ACTION

One issue that frequently arises in these cases is what qualifies as an adverse employment action. An adverse employment action is “an ultimate employment decision, such as a discharge or failure to hire, or other conduct that ‘alters the employee’s compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee.’ ” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir.2000) (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.1997))”. Pashoian v. GTE Directories, 208 F.Supp.2d 1293, 1303 (M.D.Fla.,2002).

Courts analyze whether there is an adverse employment action both subjectively and objectively. “To determine whether there is sufficient action to constitute adverse employment action, the court must look at each claim on a case-by-case basis, using a subjective and an objective standard. (citing Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir.1999)).” Pashoian v. GTE Directories, 208 F.Supp.2d 1293, 1303 -1304 (M.D.Fla.,2002).

Unsupported allegations with nothing else are not sufficient to support a prima facie case of discrimination. “Although the denial of a pay increase may well constitute an adverse employment action in the instant matter, Richardson’s offers only bare allegations in her affidavit that she believes the denial was retaliatory; such uncorroborated subjective belief is insufficient to establish a prima facie case of retaliation. See Grimes v. Tex. Dep’t of Mental Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir.1996) (citations omitted)”. Richardson v. Monitronics International, Inc., 2004 WL 287730, *5 (N.D.Tex.,2004).

CAUSAL CONNECTION

Another important element of proving a discrimination claim under the FMLA is to establish a causal connection between the adverse employment action and the employee’s participation in protected activity. “To establish a causal connection between Plaintiff’s participation in a protected activity and Defendant’s adverse employment action, Plaintiff must show that the “decision-maker[s] [were] aware of the protected conduct,” and “that the protected activity and the adverse action were not wholly unrelated.” Gupta, 212 F.3d at 578 (quoting Farley, 197 F.3d at 1337 (citation, internal marks, and emphasis omitted))”. Pashoian v. GTE Directories, 208 F.Supp.2d 1293, 1304 (M.D.Fla.,2002).

Courts have held that close temporal proximity can demonstrate a causal connection. “For the purposes of a prima facie case, ‘close temporal proximity’ may be sufficient to show that the protected activity and the adverse action were not ‘wholly unrelated.’ (citing Farley, 197 F.3d at 1337).” Pashoian v. GTE Directories, 208 F.Supp.2d 1293, 1304 (M.D.Fla.,2002). See also, Darboe v. Staples, Inc., 243 F.Supp.2d 5, 17 (S.D.N.Y.,2003)(“A plaintiff may demonstrate a ‘causal connection’ by showing that the adverse employment action closely followed in time the protected activity. See Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988); Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 160- 61 (1st Cir.1998); Young v. Rogers & Wells, LLP, 2002 WL 31496205, at *7 (S.D.N.Y. Nov.6, 2002); Merli, 2002 WL 424649, at *6.”).

PRETEXT

Demonstrating pretext is also an important issue for plaintiffs. “To illustrate pretext, McCauley must show that ‘either the stated reason was unworthy of credence or that a discriminatory reason more likely motivated’ Hydrosol’s decision. Cliff v. Bd. of Sch. Comm’rs of City of Indianapolis, 42 F.3d 403, 412 (7th Cir.1995).” McCauley v. Hydrosol, Inc., 2002 WL 31545882, *5 (N.D.Ill.,2002).

ELIGIBILITY

One issue that has come up and been litigated frequently is whether in a discrimination case, the employee must be “eligible” for FMLA leave at the time the employee makes the request for leave or whether the FMLA protects employees who request leave when they are ineligible who are requesting leave in the future when they will be eligible employees. The courts seem to be split on this issue. The majority of cases seem to hold that if the employee is ineligible at the time the leave request is made, they may not bring a discrimination case for denial of the leave. “A number of federal courts that have considered the issue have found that there can be no retaliation under the FMLA unless and until an employee becomes eligible under the FMLA. In Coleman v. Prudential Relocation, 975 F.Supp. 234 (W.D.N.Y.1997), the court found that the plaintiff could not sustain a retaliation charge because he was not an eligible employee at the time he engaged in protected activity.” Walker v. Elmore County Bd. of Educ., 223 F.Supp.2d 1255, 1258 (M.D.Ala.,2002). Other courts have followed the Prudential case. “Many district courts have followed the logic used in Prudential Relocation. See Morehardt v. Spirit Airlines, Inc., 174 F.Supp.2d 1272, 1280 n. 43 (M.D.Fla.2001) (collecting cases). In Morehardt, the plaintiff claimed that, although she was not eligible for FMLA benefits, she still had a viable FMLA claim. The court began its analysis with the text of 29 U.S.C.A. § 2615(a)(1), which states that, “It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” The court then noted that it was undisputed that the plaintiff had not worked the required 1,250 hours required for FMLA eligibility. After noting there was no circuit case directly on point and after discussing several district court cases from around the country, the Morehardt court found that “if an employee fails to show that he was eligible under the FMLA he cannot show, as a matter of law, that he was engaging in protected activity.” Id. Since Walker was not an eligible employee, she would not, under the logic of these decisions, have any retaliation claim.” Walker v. Elmore County Bd. of Educ., 223 F.Supp.2d 1255, 1259 (M.D.Ala.,2002). However, in the Walker case, the district court held that the employee was protected from their prospective request for FMLA leave even though they were ineligible for leave at the time the leave request was made. The Eleventh Circuit affirmed the case but held that in this particular case the employee could not bring a discrimination claim because not only was she not eligible on the day she requested the leave but she also would not have been eligible for FMLA leave on the day the leave was to begin. She would only become eligible for FMLA leave a few days after the leave began. The Circuit Court believed that this was enough of a distinction to hold her ineligible and expressly reserved decision on the issue of whether she would have been covered by the FMLA had she been eligible on the day her FMLA leave was to begin. “Examining the facts of this case closely, however, reveals that Walker’s case is not one “where the employee, before she becomes eligible for FMLA, is putting the employer on notice of her intent to take FMLA leave after she becomes eligible for FMLA coverage.” Walker, 223 F.Supp.2d at 1260. Here, Walker would not have been eligible for leave even at the time her leave was to begin. Instead, Walker’s request was for leave that would begin several days before she would have become eligible had her contract been renewed. There can be no doubt that the request–made by an ineligible employee for leave that would begin when she would still have been ineligible–is not protected by the FMLA. We leave for another day the question of whether the FMLA protects a pre-eligibility request for post-eligibility maternity leave.” Walker v. Elmore County Bd. of Educ., 379 F.3d 1249, 1253 (11th Cir. (Ala.),2004).

HOW FMLA RELATES TO YOU PERSONALLY

If you feel you have been discriminated against or your employer has interfered with your FMLA rights.
The first thing you should do if you feel that your FMLA rights have been violated is to run through a checklist in your own mind to determine if you are in fact eligible for FMLA leave. In order to be eligible for FMLA leave you must have worked for 1250 hours in a 12 month period for an employer that has 50 or more employees in a 75 mile radius. “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 twelve months; and (2) he must have worked at least 1250 hours in the preceding twelve months. 29 U.S.C. § 2611(2)(A); 29 C.F.R. § 825.110(a).” Ruder v. MaineGeneral Medical Center , 204 F.Supp.2d 16, 18 (D.Me.,2002). See also, Wellenbusher v. National Linen Industries, Inc., 2003 WL 22038695, *1 (S.D.Fla.,2003) (“The FMLA defines an eligible employee as an employee who has been employed “(i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period.” 29 U.S.C.A. § 2611(2)(A).”). The 12 months do not have to be consecutive.

Even if you were not eligible for FMLA leave the Department of Labor regulations state that if your employer has informed you that you are an eligible employee the employer cannot later contest that determination. “On appeal, Woodford challenges dismissal of her FMLA claim, arguing that CAGC could not contest her eligibility under the Act because CAGC itself had provided her notice of eligibility in accordance with 29 C.F.R. § 825.110(d). The regulation prohibits an employer from challenging an employee’s eligibility for leave under the FMLA once the employer has given notice to the employee that she is eligible for such leave. See Id.” Woodford v. Community Action of Greene County, Inc., 268 F.3d 51, 53 (2nd Cir.,2001). Courts have held however that this regulation is invalid. “However, a number of courts, including the Seventh and Eleventh Circuit Courts of Appeals, have examined 29 C.F.R. § 825.110(d) and struck it down because it impermissibly widens the statutory definition of an eligible employee. See Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791, 796-97 (11th Cir.2000), cert. denied, 532 U.S. 1037, 121 S.Ct. 1998, 149 L.Ed.2d 1001 (2001); Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 582 (7th Cir.2000).” Woodford v. Community Action of Greene County, Inc. 268 F.3d 51, 55 -56 (2nd Cir.,2001) In Woodford the court rejected that Department of Labor regulation and held that you must have met the statutory requirement of 12 months and 1250 hours to actually be entitled to the protections of the FMLA. “For the foregoing reasons, we hold that 29 C.F.R. § 825.110(d) is invalid and that Woodford lacks the minimum hours of employment necessary to qualify as an eligible employee under the FMLA.” Woodford v. Community Action of Greene County, Inc., 268 F.3d 51, 57 -58 (2nd Cir.2001).

If you believe that you are eligible for FMLA the next question you need to ask yourself is whether the leave you have requested is FMLA leave. For instance, the FMLA only allows you to take leave to care for certain family members. The FMLA defines family members as parents, children and spouses. It does not include cousins, in-laws or grandparents. Accordingly, if you have requested leave to care for your cousin your leave will be denied because you are not entitled to take FMLA leave to care for a cousin. In a recent case the court held that the employee’s FMLA rights had not been violated because they had requested leave to care for their grandmother. The FMLA does not cover leave to care for grandmothers. “In addition, Monitronics alleges that Richardson was not eligible for leave to care for her grandmother under the provisions of the FMLA. See 29 U.S.C. § 2611(7), (12); 29 C.F.R. §§ 825.113(b), (c)(3) (setting forth eligibility for FMLA parental leave); Krohn v. Forsting, 11 F.Supp.2d 1082, 1091-92 (E.D.Mo.1998) (citing Bauer v. Dayton-Walther Corp., 910 F.Supp. 306, 308 n. 2 (E.D.Ky.1996)) (“the plain language of the statute does not authorize FMLA leave for the care of grandparents.”)”. Richardson v. Monitronics International, Inc., 2004 WL 287730, *3 (N.D.Tex.,2004).

In addition, to be eligible for FMLA leave you must not have exhausted your 12 weeks of leave in a 12 month period. Accordingly, if you took 12 weeks of FMLA leave three weeks ago and are not requesting additional FMLA leave you would not be entitled to it because you would have already exhausted your 12 week entitlement in that 12 week period. To ensure that you have properly examined all of these issues you should contact Mark Carey at 203-255-4150 or mcarey@capclaw.com. Even if you are unable to contact an attorney, you should send a letter to your company’s human resource department advising them that you believe that your FMLA rights have been violated. This will at least preserve your rights until you are able to seek legal counsel.

If you have been accused of discriminating against an employee due to the use of their FMLA rights or interference with FMLA rights.
If you have been accused of violating an employee’s FMLA rights you should contact your company’s human resource department. Human resources will determine whether the employee is an FMLA eligible employee and whether the leave they have requested is in fact covered by the FMLA and whether they have yet exhausted their 12 week entitlement. If you get to the point where it is determined that in fact the employee should have been provided with their FMLA rights and were not and the employee is claiming that you are responsible you may want to consult legal counsel. Usually the company will handle the claim. However, courts have held that managers can be individually liable under the FMLA. “The majority of district courts, relying on the FMLA’s plain language and its implementing regulations, have looked to FLSA individual liability case law and determined that individual liability exists under the FMLA. Id. at 412 (citations omitted). This Court agrees and finds that individual liability is permitted under the FMLA.”. Cantley v. Simmons, 179 F.Supp.2d 654, 658 (S.D.W.Va.,2002). Since there may be some exposure on your part as a result of this, you may want to seek advice from an attorney.