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5th Circuit: Generous FMLA Leave May Not Shield Employer from Liability

By R. Scot Harvey   5/16/2008
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An employer that grants an employee more leave time than the Family and Medical Leave Act (FMLA) guarantees but that fails to notify the employee that the leave time counts toward the employee’s annual FMLA leave entitlement can be held liable for violating the employee’s FMLA rights, the 5th U.S. Circuit Court of Appeals ruled.

Susan Downey, who worked in the St. Tammany Parish Sheriff’s Office crime lab, sustained knee, neck and shoulder injuries from accidents that occurred in 2000 and 2001. She took a paid leave of absence from Nov. 7, 2002, through March 16, 2003, to have surgeries on her knee and shoulder. Downey’s employer, Sheriff Rodney Strain, notified Downey that he was designating the leave time from Dec. 29, 2002, through March 16, 2003, as FMLA leave. This left Downey with 52 hours of FMLA leave remaining through Dec. 28, 2003.

Downey injured her knee again in June 2003 and took a second leave of absence from July 30, 2003, through Oct. 3, 2003, to have surgery (the “July leave”). Strain charged Downey with FMLA leave for the first week of this period of absence, but he did not notify Downey that he did so, as required by the applicable FMLA regulation (29 CFR §825.208(a) and (b)).

Downey’s FMLA leave was exhausted as of Aug. 7, 2003, but Strain kept her on non-FMLA paid leave until her return on Oct. 3, 2003. When Downey returned to work that day, she was reassigned to another position where she did not enjoy the same fringe benefits.

Downey sued Strain (in his official capacity), alleging that he had violated her FMLA rights by failing to notify her that the first week of the July leave would be designated as FMLA leave and by not reinstating her to the same job when she returned on Oct. 3, 2003. Downey contended that, had she been notified that the July leave would be counted as FMLA leave, she would have postponed her knee surgery to a time when it would not have caused her to exceed her available FMLA leave (i.e., until after Dec. 28, 2003), and consequently she would never have been reassigned to a less desirable position.

The jury agreed with Downey and awarded her $16,400 in back pay, $13,128 in front pay and attorneys’ fees.

On appeal, Strain, relied on the U.S. Supreme Court’s 2002 decision in Ragsdale v. Wolverine World Wide Inc., to argue that the FMLA regulation requiring employers to provide notice to an employee when the employer is designating a period of absence as FMLA leave is invalid.

The 5th Circuit rejected this argument, holding that here, unlike the plaintiff in Ragsdale, Downey had proven that she was actually prejudiced by Strain’s failure to notify her that the July leave would count as FMLA leave. Had Downey been notified that the July leave would count as FMLA leave, she would have postponed her knee surgery and, as a result, would never have been reassigned to a less desirable position.

In reaching this result, the 5th Circuit relied on the Supreme Court’s pronouncement in Ragsdale that courts evaluating FMLA claims involving employer challenges to the FMLA notice regulations must conduct “a retrospective, case-by-case examination” that addresses “whether the employee would have exercised his or her FMLA rights in the absence of the employer’s actions.”

Downey v. Strain , 5th Cir., No. 06-30613 (Dec. 12, 2007).

Professional Pointer: Absent extenuating circumstances, always give the employee written notice, within two business days of acquiring knowledge that the absence is FMLA-qualifying, that the period of absence will be designated as FMLA leave. If an employer fails to provide this written notice to the employee, the employer may have to later provide the employee with more leave than the FMLA requires and may be exposed to liability under the FMLA.

R. Scot Harvey is a partner in the firm of Millisor & Nobil Co. L.P.A , the Worklaw® Network firm in Cleveland.

Editor’s Note: This article should not be construed as legal advice.

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