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Family and Medical Leave Act Archives

Recent 7th Circuit Case Cautions Employees to Provide Proper Notice

The Seventh Circuit Court of Appeals, which encompasses Illinois, Indiana, and Wisconsin, recently decided a case which stands to remind employees of the importance of giving proper notice of the need for FMLA protected leave. Proper notice includes following all FMLA regulations as well as your employer's specified procedures.
In Brown v. Automotive Components Holdings, LLC and Ford Motor Co. the employee, Leticia Brown, was a union member.  As a union member, Ms. Brown was subject to the policies and provisions of the collective bargaining agreement ("CBA") in effect at the time of her termination. The CBA had specific procedures that an employee had to follow when seeking medical leave. Specifically, employees were required to fill out a specific form and return it to the employer by the date on which the leave was to expire.  If the employee sought an extension of leave, she also was required to fill out the form and return it to the employer before the leave was set to expire.  Under the CBA, if the employee seeking an extension failed to return the form by the date the leave expired, she would receive a "quit notice" which gave her five days within which to report to work or explain the reason for her absence. If she failed to do either within five days of the "quit notice," she would be terminated.
Ms. Brown properly requested medical leave under the CBA procedures on August 11, 2006. Her leave was set to expire on August 28th. Ms. Brown became aware on August 21st that she would need an extension of leave.  In an effort to comply with the CBA leave procedues, Ms. Brown asked her doctor's office to fax additional paperwork to her employer asking for an extension.  However, Ms. Brown did not follow up with the doctor or her employer.  The employer never received the additional paperwork.
Ms. Brown called her employer on August 30th and informed the employer of the needed extension. This was nine days after she first became aware of the need for the extension.  The employer stated that she needed to fill out the form required by the CBA.  Ms. Brown failed to do so. On August 31st - after her leave had expired (on August 28th), the employer sent Ms. Brown a "quit notice" in accordance with the CBA leave procedures.  The "quit notice" stated that Ms. Brown had five days within which to report to work or provide proper verification of her need for leave extension.  Ms. Brown failed to timely retrieve her mail and did not immediately receive this notice, or a similar notice sent from her union. Therefore, she did not respond to the "quit notice" within five days and was terminated.  On September 12th, the day after she learned that she had been terminated, Ms. Brown faxed the required CBA leave form to her employer. Her employer refused to accept the delayed form.
Under the Department of Labor FMLA regulations, where leave is unforeseeable, an employee has two working days after learning of the need for leave to inform her employer of her need for leave. The Seventh Circuit found that Ms. Brown should have informed her employer of her need for extended leave within two days of August 21st (the day she realized that she needed an extension). Because she did not inform her employer within two days of August 21st, Ms. Brown did not give her employer proper notice under the FMLA regulations. The court found that she therefore could not prevail on an FMLA interference claim. It is important to note that the court specifically rejected Ms. Brown's argument that since the CBA allowed five days to ask for an extension, she did not need to follow the two day notice rule under the FMLA regulations. The court held that the employer's more lenient procedures did not operate as an automatic waiver to the FMLA notice regulations.
The court went on to state that even if Ms. Brown had abided by the two-day rule, the employer was still within its right to deny her continued leave since the FMLA regulations also allow an employer to require employees to comply with its "usual and customary notice and procedure requirements for requesting leave." In other words, the FMLA regulations allow an employer to require that an employee follow its specific procedures with regard to requesting FMLA leave. If the employee does not follow those specific procedures, she can be denied her FMLA leave. Here, because Ms. Brown did not fill out the forms required under the CBA, and did not comply with the specific leave procedures specified in the CBA, the employer was not legally required to grant her request for extended FMLA leave.
There are several cautionary tales for employees in this case. First, when an employee asks her doctor or provider to fax or submit a form on her behalf, she should always follow up to ensure that the doctor actually did so and that the employer received the form. If the doctor does not submit the form on the employee's behalf, the employer can deny the employee's request for leave, even though it was not the employee's fault that the employer did not receive the required information. An employee should always be diligent in following up with the doctor and the employer.  In the alternative, the employee should deliver the completed form to the employer herself.
Second, an employee should always notify her employer of the need for FMLA leave within two business days of realizing the need for leave. This two day rule should be followed even where the employer's policies are more lenient in terms of time.  For example, if the employer's policy requires an employee to give notice within four days of realizing the need for leave, the employee should still give notice within two days, in order to comply with the FMLA regulations.
Third, the employee should take care to follow the employer's leave policies to the letter (except where the procedures are more lenient than the FMLA regulations).  If an employee needs to fill out a specific form, notify a specific person, call a specific phone number, etc., in order to obtain leave, he or she should always do so. Failure to follow the employer's specific leave procedures, even if they are stricter than what is required under the FMLA, can be grounds for rejecting an otherwise valid FMLA request.

Can an employer deny an employee her FMLA rights where she fails to comply with the employer's in-house FMLA procedures?

Can an employer deny an employee her FMLA rights where she fails to comply with the employer’s in-house FMLA procedures?

In a recent decision, the Fifth Circuit Court of Appeals wrestled with whether an employee’s failure to strictly follow her employer’s in-house FMLA procedures - which were more stringent than what is required under the law - justified the employer in denying the employee’s FMLA leave and terminating her for excessive absences.
In that case, Saenz v. Harlingen Medical Center, the employer had a third party FMLA administrator. The employer required employees who were approved for intermittent leave (sporadic or irregular leave depending on when the condition flares up, when treatment or doctor's appointments are, etc.) to call the third party administrator no later than two (2) days after each time that the employee took leave. Employees, including the employee at issue, Shauna Saenz, were warned that failure to call the administrator within two days of the absence could result in the loss of FMLA protection. Ms. Saenz had applied for, been approved for, and used intermittent FMLA leave pursuant to a seizure disorder. Each time she took a day of intermittent leave due to this disorder, she called the third party administrator within two days. All of the documentation approving her various requests for leave for her seizure condition included a warning / reminder that she must contact the third party administrator within two days of an absence in order for the absence to be considered FMLA-protected. Ms. Saenz was reminded of this requirement by her supervisor as well. Less than a year after applying for intermittent FMLA leave due to her seizure disorder, Ms. Saenz began experiencing symptoms of severe depression / mental illness. She missed work due to these symptoms from December 29 - 31, 2006 and January 3-4, 2007. During this time period, she went to the emergency room and was admitted to two in-patient treatment centers. She was released from the second treatment center on January 2, 2007, and was released into her mother's care. During this treatment, Ms. Saenz was diagnosed with bipolar disorder and depression. Ms. Saenz’s mother contacted Ms. Saenz’s supervisor twice during this time period to inform her of Ms. Saenz’s medical condition, her treatment, and her inability to work. She also contacted the third party administrator once (on December 28th) to advise the administrator of Ms. Saenz’s medical condition and absence. On January 9, 2010, Ms. Saenz personally contacted the third party administrator regarding her absences from December 29 - 31, 2006 and January 3-4, 2007. During that telephone call, she informed the third party administrator of her new mental diagnoses and of her in-patient treatment during her absences. She also requested FMLA intermittent leave due to these mental conditions. On January 18, 2007, Ms. Saenz was terminated due to “non-FMLA related absences.” The employer determined that her absences from December 29 - 31, 2006 and January 3-4, 2007 were non-FMLA related since she was required to contact the third party administrator within two days of her release from the in-patient treatment center (on January 2, 2007) and failed to do so until January 9, 2007. The court considered whether Ms. Saenz’s failure to strictly comply with the employer’s two-day notice requirement relieved the employer of its duty to provide Ms. Saenz with FMLA protected leave. It concluded that it did not. The court based its decision on three factors. First, it found that Ms. Saenz and her mother had provided the employer and the third party administrator with enough information for them to be on notice that she was missing work due to an FMLA-qualifying medical condition. Second, Ms. Saenz did not affirmatively refuse to comply with the employer’s in-house procedure. Rather, her mom made several efforts to contact the employer and third party administrator and Ms. Saenz contacted the third party administrator herself to apply for leave, even if it was later than the two day requirement.  Finally, Ms. Saenz’s knowledge of the employer’s FMLA procedures did not justify the employer’s finding that her failure to strictly comply with them stripped her off her FMLA protections. She did not consciously refuse to comply with the procedures and she had persuasive reasons for straying from them. (These reasons include the fact that she was hospitalized; the fact that she was suffering from a severe episode; the fact that she was placed under judicially created guardianship for several days; and the fact that she was released into her mother’s care. In other words, her condition was severe enough to justify straying from the employer’s strict policy). Employers are permitted to implement FMLA policies that are stricter than what is required by law. However, employers should be aware that they cannot automatically deny an employee her FMLA rights for failure to comply with those stricter policies in every situation. An employer must weigh whether the employee gave sufficient notice that the leave was FMLA qualifying; whether the employee affirmatively refused to comply with its procedures, or merely could not comply due to the severity of the condition/episode; whether the employee consciously refused to comply with its procedures; and whether she had good reason for straying from the procedures. If an employee has been denied her FMLA rights due to her failure to comply with her employer’s FMLA policy, she should contact an attorney immediately to determine whether the denial was legal. Failure to comply with an employer’s FMLA policy may not be enough to justify a denial of FMLA rights.

Does the FMLA provide any protection for same-sex couples?

Does the FMLA provide any protection for same-sex couples?

The FMLA provides federally protected leave for legally married spouses who have just experienced a birth or adoption of a child, or who need to take leave to care for a sick spouse, parent or child. As the issue of equal rights for same-sex couples has come to the forefront, many have begun to ask what that means in terms of a same-sex couple's FMLA rights.  Can a same-sex partner or spouse take FMLA protected leave to care for her same-sex partner or spouse or the children that they are raising together? 
Currently the Defense of Marriage Act (“DOMA”) governs who is considered a “spouse” for purposes of all federal laws. DOMA defines marriage as a legal union between one man and one woman. Therefore, because of DOMA, the FMLA does not currently afford protections or rights to same-sex couples or spouses. As such, if one partner in a same-sex couple needs to take time off work to care for their sick same-sex partner, such leave or absence is not protected leave under the FMLA.
On March 25, 2009, four House Democrats introduced the Family Leave Insurance Act of 2009. The Family Leave Insurance Act would extend protected leave to care for a domestic partner. On April 28, 2009, U.S. Rep. Carolyn Maloney (D-NY) introduced the Family Medical Leave Inclusion Act. If passed, this Act would expand the FMLA to permit leave to care for (among others) a same-sex spouse, domestic partner, or adult children and children of a domestic partner. Under both bills, a domestic partner of an employee is a person recognized as a domestic partner or same-sex spouse under any laws of the State in which the employee resides, including domestic partner registires or civil union laws, or “in the case of an unmarried employee who lives in a State where a person cannot marry a person of the same sex under the laws of the State, a single, unmarried adult person of the same-sex as the employee who is in a committed, intimate relationship with the employee, is not a domestic partner to any other person, an who is designated to the employer by such employee as that employee’s domestic partner.” Either of these bills, if passed, would expand the protections of the FMLA to same-sex couples. However, neither bill has passed as of yet. While same-sex partners are still unable to claim rights to care for each other under the FMLA, the Department of Labor (DOL) issued guidance on June 22, 2010 clarifying how the FMLA applies to children in a same-sex relationship context. The June 22, 2010 guidance specifically states that an employee who shares in the responsibility of raising a child with a same-sex partner, even if the employee does not have a legal relationship with that child, is entitled to FMLA protected leave in order to bond with the child following placement, or to care for the child if the child has a serious health condition. As a result of this opinion, even if the same-sex partner is not biologically related to the child and has not adopted the child, he or she is still entitled to take FMLA protected leave to care for the child.Although employers still are not required by federal law to provide same-sex partners leave to care for each other, in light of the DOL’s recent opinion letter, employers are now required to allow leave for same-sex partners to care for children they are raising with a same-sex partner or spouse, regardless of the employee's legal relationship to the child (or lack thereof). Further, although federal law still does not allow leave for same-sex partners to care for each other, some states and municipalities have passed laws providing family leave to same-sex couples. Specifically, in Wisconsin, the Wisconsin Family Medical Leave Act ("WFMLA") requires employers with 50 or more employees to provide WFMLA leave to employees to care for their domestic partners and the parents of their domestic partners.  Interestingly, the WMFLA, unlike the federal FMLA, does not allow employees to take leave to care for a domestic partner's child.  If you are in a same-sex partnership or marriage and feel that you are being refused your rights under the federal FMLA or a similar state or local law, you should immediately contact an attorney to determine whether your rights are being violated.

What Constitutes Adequate Notice of the Need to Take FMLA Leave?

What Constitutes Adequate Notice of the Need to Take FMLA Leave?

If employees do not give their employers adequate notice of their need for FMLA leave, they may deny themselves their benefits and rights under the FMLA.  Therefore, it is important for employees to understand what constitutes an adequate request for leave under the FMLA.

The Department of Labor ("DOL") regulations on the FMLA require that for "foreseeable" leave, an employee must provide at least 30 days notice before the leave is to begin. This is usually possible in situations where the employee or his or family member is undergoing a scheduled surgery or a scheduled medical treatment. (In addition to giving 30 days advance notice, if an employee is scheduling a surgery or treatment, he is also required to consult with the employer to make reasonable effort to schedule the treatment so as not to disrupt the employer’s operations).

Sometimes the need for leave is "unforeseeable."  For example, an employee may give birth prior to her due date, undergo emergency surgery, or be hospitalized due to a medical emergency.  Giving 30 days notice would not be practicable in these situations.  If the need for leave is "unforeseeable," and giving 30 days notice is not possible or practicable, the employee must give notice “as soon as practicable.” The regulations define “as soon as practicable” as providing notice of the leave either the same day or the next business day. However, in certain situations, this may not be possible either.  In determining when it was practicable for an employee to provide notice, the employer is required to take into consideration the individual facts and circumstances of every situation.  In a situation where the need for leave is unforeseeable, if the employee is unable to give notice herself, a family spokesperson may give notice on her behalf (i.e., spouse, adult family member, or other responsible adult).There is no requirement that an employee's notice be written. Verbal notice of the need for leave is sufficient. However, the notice must be sufficient enough for the employer to be aware that the employee needs FMLA leave as well as include the anticipated duration and timing of that leave.  In some situations, just indicating the medical condition will be enough to put the employer on notice, where that condition indicates to the employer that it renders the employee unable to perform her job duties. For example, when an employee tells her boss that she is pregnant, she has put her employer on notice of her need for FMLA leave.  Similarly, when an employee tells his employer that he has been hospitalized, he has put his employer on notice of his need for FMLA leave.  Simply “calling in sick,” however, without saying more, is not enough. Typically, the employee is not required to expressly state that she is asserting her rights under the FMLA or even mention the FMLA during her request for leave.  However, if the employee is requesting a second leave for a condition for which she has previously taken leave, then she needs to specifically reference the FMLA. For example, if the employee has taken FMLA leave to care for her sick husband six months prior and she suddenly needs to take additional leave to care for him, she must reference the FMLA during this second request. After an employee has given notice of the need for leave, the employer has the right to inquire further whether the leave is FMLA-qualifying or to request more information to make that determination.  The employer has the right to, and almost always will, request doctor certification to determine if the medical reason is a serious health condition. The employee has a duty to respond to the employer’s questions regarding whether the leave is FMLA-qualifying or to provide more information, including the doctor certification, upon the employer's request. An employee’s failure to respond to such questions or requests may result in a denial of FMLA covered leave.Employers may also require an employee to comply with its usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, if it is the employer’s policy that a certain individual be contacted regarding leave or a sick day, then the employee must contact that individual for their FMLA leave request. If an employer’s policy requires a written request for leave, than the employee must follow that policy. Failure to comply with the employer’s usual policy could result in a denial of FMLA covered leave. When an employee seeks intermittent leave or a reduced schedule under the FMLA, he must advise the employer, upon the employer’s request, of the reasons the intermittent or reduced leave schedule is necessary. Both parties are required to attempt to come to a solution/schedule for such leave that meets the employee’s needs without unduly burdening the employer’s business operations. A district court in Florida recently addressed the issue of what constitutes an employee’s adequate notice in Cooper v. Gulfcoast Jewish Family Services, Inc.   In that case, the court held that there were two components to valid notice of the need for FMLA leave: “(1) the notice must inform the employer that the employee desires time off from work; and (2) the notice must assert that the requested absence is due to a FMLA qualifying condition.” The court found that after the employee expresses these two components, the onus is then on the employer to inquire further about whether the employer is seeking FMLA leave. The court also noted that where the leave is unforeseeable, the employer must provide the employee with at least fifteen (15) calendar days to provide any requested doctor certification. The court found that the 15 day time period runs from the date of the employer's request for the information, not from the date of employee’s absence. If you have given your employer adequate notice of your need for FMLA leave and you feel that your condition qualifies for the FMLA, but your employer is still denying you FMLA leave, you should contact an attorney. You should also contact any attorney if you feel you are being retaliated against for seeking or taking FMLA protected leave.

Does the FMLA give rise to a private cause of action against an employer for disclosure of medical information?


The answer to this question has yet to be definitively answered. A federal court recently entertained the question, but refrained from making a detailed analysis of the issue. Ekugwum v. City of Jackson, Mississippi, 2010 WL 1490247 (S.D.Miss. 2010). The court did, however, allow the claim to go forward on summary judgment since the defendant had failed to argue that no such cause of action exists.
In that recent case, an employee alleged that the dissemination her medical information violated the FMLA. The employee had been hospitalization for treatment of a mental condition. After being hospitalized, the employee approached her supervisor and informed him that her mental condition would require her to take leave from work. The employer, as with most employers, required medical information in order to approve her leave as FMLA qualifying leave. The employee provided her supervisor with required medical information in a sealed envelope. She later found out that her medical information had been divulged to others in the office. Her coworkers informed her that they were aware of her mental condition. The employer had divulged the confidential information that she had provided in a sealed envelope along with her FMLA application. The court noted that the FMLA creates no privacy interests. However, it stated that the FMLA regulations give rise to a potential private right of action for employees whose medical have been disclosed by their employer. Specifically, the federal regulations for the FMLA addressing privacy require that the medical documents and records of an employee or employee's family member "shall be maintained as confidential medical records in separate files/records from the usual personnel files." See 29 C.F.R. §825.500(g). In its brief analysis, the court, which declined to give an opinion on whether such a cause of action actually exists, cited other courts who have touched on the issue.
The District of Maryland briefly addressed this issue in a footnote in Walker v. Gambrell, 647 F.Supp.2d 529, 539 n. 5 (D.Md. 2009), stating that it is not settled whether the FMLA regulation provides a private cause of action for disclosure of medical information. The Northern District of Georgia briefly addressed the issue stating that there is no cause of action based on the FMLA regulation, and therefore, that employees cannot sue their employers under the FMLA for divulging information. See Rich v. Delta Air Lines, Inc., 921 F.Supp. 767, 773 (N.D. Ga. 1996).
The issue was discussed in more detail by the District of Minnesota in Johnson v. Moundsvista, Inc., 2002 WL 2007833 (D.Minn. 2002) (not reported). There, the court acknowledged that there may be a cause of action under the FMLA based on disclosure of information, but stated that if one does exist, an individual bringing such claim must show that she suffered a "tangible injury" from such disclosure. In other words, the court held that it is not enough that the disclosure was made. The employee must have suffered some concrete or material loss or injury as a result of that disclosure. Id.
As these cases show, the question of whether an employee has a private cause of action under the FMLA remains unanswered. However, the fact that the Southern District of Mississippi recently allowed the claim to go forward passed the summary judgment stage shows that courts are open to considering this cause of action as a rightful claim.
An employer should not disclose an employee's medical information to anyone who is not directly involved in approving and/or maintaining his or her medical leave. If your employer has disclosed confidential medical information that you provided in connection with your FMLA leave, you should talk to an attorney about whether you have a cause of action against your employer. It is worth exploring whether you may have a cause of action against your employer under the FMLA, the ADA, or some other state law. 

Court Finds Genuine Issue of Material Fact Where Employee Terminated Same Day She Returned From FMLA Leave

Court Finds Genuine Issue of Material Fact Where Employee Terminated Same Day She Returned From FMLA Leave

A federal court recently held that an employer may have violated the FMLA where it terminated the employee the same day that she returned from FMLA leave. In Mastin v. SYSCO Food Services of Detroit, LLC, the plaintiff, a former employee, brought a claim against her former employer for FMLA interference and FMLA retaliation. The court refused to dismiss the case on summary judgment, finding that there was a genuine issue of material fact as to whether the employee was terminated because she had taken FMLA leave. In this case, the employee took FMLA leave after the birth of her two children in 2002 and 2006. In 2007, she took a third leave under the FMLA after having hip surgery. Her third FMLA protected leave began in November 2007 and lasted until February 2008. The plaintiff was terminated the day she returned from leave in February. The employer stated that it terminated the plaintiff because her position was being eliminated. The employer alleged that it had began an analysis of the plaintiff’s department in November 2007. The analysis looked at the current jobs in the department, the amount of work that needed to be done in the department, and the people in the department. The employer claimed that the results of this November analysis plus dismissal 2007 holiday sales yielded a decision that the plaintiff’s position was no longer needed. In finding that the plaintiff had viable FMLA claims, the court relied heavily on the timing of her termination. She was terminated the exact date that she returned from her FMLA leave. The court also found suspect the fact that the employer’s alleged analysis of the department began the same time that the plaintiff began her FMLA leave. In addition to these timing issues, the court cited the fact that the plaintiff had a stack of work waiting for her on desk when she returned from leave and the fact that her coworker had testified that there was more work than could be done in the department while the plaintiff was on leave. The court found that these factors, taken together, could lead a reasonable jury to find that the employer interfered with the plaintiff’s FMLA rights and terminated her in retaliation for exercising those rights. If an employee is terminated at or near the time she returns from taking FMLA protected leave, she should look further into the reason given for her termination. If there is reason to doubt the employer's explanation for the termination, she should contact an attorney, as her FMLA rights may have been violated.

Employer Interfered With Employee's FMLA Rights By Failing To Respond To Her FMLA Application

Employer Interfered With Employee's FMLA Rights By Failing To Respond To Her FMLA Application

In Brunson v. Forest Preserve District of Cook County, a recent federal case in the Northern District of Illinois, the Court found that an employer had interfered with an employee’s FMLA rights where the employer had received the employee’s FMLA application, but never responded to that application before terminating her. In this case, the plaintiff, a police officer in training, has been diagnosed with asthma three years before being hired by the police department/employer. As she began working outdoors in her post as a police officer, the plaintiff’s asthma began to worsen, resulting in sick days and two hospital visits. After the second hospital visit, the plaintiff was advised to file a request for FMLA leave.
The plaintiff submitted an FMLA request to the Police Chief on January 16, 2006. Included with the request was a certification from her physician, one of the documents typically required for an FMLA request. Plaintiff contacted the Police Chief’s office eight days after submitting her request to inquire into the status of her request. She was informed that the request had been received. About two months after submitting the request, the plaintiff still had not received an answer. She contacted the employer’s human resources department. Human resources told the plaintiff that their department had no record of receiving her FMLA paperwork. The plaintiff again contacted the Police Chief’s office and was told that the form was “stuck in legal.” The Police Chief’s office said they would get back to her with follow up information, which they never did. In April 2006, three months after submitting her FMLA request, and without ever receiving an answer regarding that request, the plaintiff was terminated. The employer argued to the court that it did not have sufficient information to make a determination about whether the leave would be designated as FMLA leave. The court disagreed. It should be noted, also, that the employer never argued that it had sought additional information from the plaintiff or her spokesperson (parent, child, spouse, doctor, etc). The court found that by failing to respond to the plaintiff’s request for three months, the employer had interfered with the plaintiff’s FMLA rights. Under the Department of Labor Regulations, an employer is required to let an employee know whether leave will be counted as FMLA approved leave within five days after having enough information to determine whether the leave is FMLA-qualifying. Where an employer does not have sufficient information to determine whether leave is FMLA-qualifying, the employer should inquire further of the employee or her spokesperson to obtain the additional information.
If an employee has applied for FMLA leave and has not received a response from her employer within five days, she should ask her employer about the status of the request. She specifically should ask if any additional information is needed. If no additional information is needed, then the employer should render an immediate decision. If the employer does not render a timely decision and does not request additional information, the employer may be liable for interfering with the employee’s FMLA rights.

Court Finds Employer May Have Violated FMLA By Laying Off Employee Pursuant to a Reduction In Force

Court Finds Employer May Have Violated FMLA By Laying Off Employee Pursuant to a Reduction In Force In Cutcher v. Kmart Corp, a federal court of appeals recently found in favor of an employee who had been terminated in a “reduction in force” (RIF) after returning from FMLA leave. The employee alleged that by terminating her employment upon her return from leave, the employer interfered with her FMLA rights. She also alleged that her employer retaliated against her for exercising her FMLA rights by terminating her employment.  In deciding that a jury could reasonably find in favor of the employee, the court of appeals paid particular attention to the fact that the employer had prepared an evaluation in preparation of the RIF which varied substantially from an actual performance review of that employee done just twenty days prior. The employer acknowledged that the employee’s performance had not changed in that short time period.  Other factors playing a role in the court’s decision included the fact that the leave of absence was referenced in the RIF evaluation, and the fact that the employer had no documented evidence of prior concern with regard to the employee’s job performance. 

While this case does not stand for the proposition that an employee who takes FMLA leave near or at the time of a RIF cannot be laid off pursuant to that RIF, it should serve as a cautionary tale for employers who are conducting a RIF. FMLA leave should not be a factor taken into account when an employer is conducting a RIF.  Like many other cases, Cutcher v. Kmart Corp. should raise a red flag for any employee who finds himself or herself being treated adversely (or out of a job) upon returning from FMLA leave.

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