This Month Only! >> $20 off and a FREE SHRM tote with your membership and code TOTE2018!
Sign up for free email newsletters and get more SHRM content delivered to your inbox.
Is your employee handbook keeping up with the changing world of work? With SHRM's Employee Handbook Builder get peace of mind that your handbook is up-to-date.
Build competencies, establish credibility and advance your career—while earning PDCs—at SHRM Seminars in 12 cities across the U.S. this spring.
#SHRM18 will expand your perspective – on your organization, on your career, and on the way you approach HR. Join us in Chicago June 17-20, 2018
Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.
An employer that terminated a worker for dishonesty did not violate the Family and Medical Leave Act's (FMLA's) prohibitions against interference or retaliation, according to the U.S. District Court for the Northern District of Texas.
Southwest Airlines employed the plaintiff as a flight attendant beginning in 2014. The plaintiff resided in Tampa, Fla., and commuted to an airport in Baltimore. Her employment was subject to a collective bargaining agreement (CBA) that contained a points-based attendance policy. The CBA also included a commuter policy providing that flight attendants who commute to work via air travel would not be assessed attendance points if they were late because their commuting flight was full or delayed.
On June 7, 2015, the plaintiff notified Southwest that she would be absent from work for four days due to sinusitis. The following day, Southwest sent her an FMLA notice and advised that she was eligible for FMLA leave. Southwest also outlined the process required to secure covered leave and directed her to submit an application by June 23, 2015. The plaintiff never submitted an FMLA application.
[SHRM members-only how-to guide: How to approve or deny a request for FMLA leave]
On June 24, 2015, she called Southwest and stated she would be late for her shift because her commuter flight was delayed. She first sought to invoke the commuter policy in order to avoid incurring attendance points; however, when informed that her flight did not qualify under the policy, she responded that she was instead calling in sick.
Southwest conducted an internal investigation based on the phone call and ultimately terminated her for dishonesty on July 7, 2015.
The decision to terminate was based on multiple factors, including that the plaintiff:
The plaintiff filed a lawsuit alleging that Southwest interfered with her requested FMLA leave and terminated her for attempting to exercise her FMLA rights. The district court ultimately granted Southwest's motion for summary judgment and dismissed the lawsuit.
In its analysis, the court first addressed the plaintiff's claim for FMLA interference and explained that one requirement of such a claim is that the employee gave proper notice of intent to take leave. Additionally, the FMLA allows an employer to condition leave on compliance with the employer's usual notice and procedure policies.
Here, the court found that the plaintiff did not properly notify Southwest of her intent to take FMLA leave because she never submitted an application as instructed and as specifically required by Southwest policy. This failure precluded any protection under the FLMA and defeated her claim for interference. Moreover, even if she had provided proper notice, the court held that her dishonesty gave Southwest a legitimate, nondiscriminatory reason for her termination.
The court then addressed the plaintiff's claim for FMLA retaliation and found that she had failed to offer any argument on this claim at summary judgment and, therefore, judgment for Southwest was appropriate.
DeVoss v. Southwest Airlines Co., N.D. Tex., No. 3:16-CV-2277-D (Nov. 13, 2017).
Professional Pointer: This case presents employers with a good reminder of the potential pitfalls surrounding FMLA leave and lawsuits alleging interference and retaliation. An employer can take a good first step in combating such claims by following well-defined internal procedures, including specific notice requirements. Furthermore, an employee isn't afforded unlimited protection merely by requesting FMLA leave, particularly if the employee has violated company policies.
Michael R. Link is an attorney with Seaton, Peters & Revnew, the Worklaw® Network member firm in Minneapolis.
Was this article useful? SHRM offers thousands of tools, templates and other exclusive member benefits, including compliance updates, sample policies, HR expert advice, education discounts, a growing online member community and much more. Join/Renew Now and let SHRM help you work smarter.
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Please sign in as a SHRM member before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
Choose from dozens of free webcasts on the most timely HR topics.
SHRM’s HR Vendor Directory contains over 10,000 companies