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The 6th U.S. Circuit Court of Appeals breathed new life into an employee’s Family and Medical Leave Act (FMLA) interference and retaliation claims, reversing the district court’s decision granting summary judgment in favor of the employer and remanding the matter for trial. The court found that there were genuine issues of material fact as to whether the notice requirements of the FMLA were met, whether the plaintiff was denied a benefit under the FMLA and whether the plaintiff was constructively discharged in retaliation for seeking FMLA leave.
Robert Festerman was employed as a police officer in Wayne County’s Jail Division Two. Due to understaffing, the jail instituted mandatory overtime, and officers who refused overtime assignments would receive disciplinary write-ups and be referred for administrative review.
On March 3, 2012, Festerman experienced chest pains and shortness of breath while at work. After notifying the jail of his condition, he was transported to the hospital. When he returned to work on March 8, he submitted an injury report. On March 9, Festerman’s doctor prescribed him anxiety medication and provided him a written note, which read, “Patient is advised to limit working hours to 8 hrs/day,” which he provided to the jail.
The jail accommodated Festerman’s hours restriction for several weeks. However, on March 28, the jail’s commander learned that Festerman and three other officers had been informally excused from overtime assignments. On March 29, there was an announcement that all officers would be assigned overtime and would be issued disciplinary write-ups if they refused the overtime assignments. In early April, Festerman received two disciplinary write-ups for refusing overtime and was referred for administrative review.
According to Festerman, in April he discussed intermittent leave under the FMLA with the human resources department and was advised that the doctor’s note he previously provided was adequate notice of his medical needs. However, he was also asked to complete a leave of absence form, which he submitted on May 3. On May 7, Festerman received a departmental recommendation for intermittent sick leave, which was subject to final approval. In addition, the leave coordinator requested clarification from Festernan’s doctor as to his hours restriction and whether he could work full time, which according to an April 26 change to the job description was now 40.5 hours/week instead of 40 hours/week. Before a response was received from Festerman’s doctor, Festerman resigned his employment claiming that he was forced to quit because his working conditions were intolerable.
To qualify for leave under the FMLA, an employee must provide notice of an FMLA-qualifying serious health condition. In this instance, the doctor’s note limited Festerman’s work hours but did not disclose his health condition or prescribe any additional treatment. The court held that a reasonable jury could find that Festerman met the FMLA notice requirements under the circumstances; specifically, the jail was aware of a serious health-related incident having occurred in the workplace and also had in its possession a doctor’s note limiting the employee’s work hours.
To succeed on an FMLA interference claim, an employee must also establish that the employer’s violation caused the employee harm. The court held that a constructive discharge could suffice as harm resulting from an employer’s interference, noting that “it would be inconsistent with the purpose of the act to bar an employee who was forced to quit his position from seeking an interference claim on grounds that the employee’s forced resignation obviated any need by the employer to provide the employee benefits to which he would otherwise be entitled.”
With regard to his FMLA retaliation claim, Festerman alleged that the jail retaliated against him for pursuing FMLA leave insofar as it modified the number of required hours in the job description; failed to properly investigate a report that a co-worker wore a T-shirt mocking Festerman’s medical condition, reading, “I refuse—I have a note from my mom”; and failed to cancel Festerman’s disciplinary write-ups and administrative review. The court held that a reasonable jury could find that intolerable working conditions existed sufficient to compel a reasonable person to resign under the circumstances.
Festerman v. Cty. of Wayne, 6th Cir. No. 14–1950 (May 8, 2015).
Professional Pointer: Employers should ensure that management and human resource personnel are properly trained to recognize leave requests that may implicate the FMLA and, further, should properly investigate any reports of alleged harassment or retaliation related to a leave request.
Natalie M. Stevens is a shareholder and Jackie Staple is an associate in the Cleveland office of Ogletree Deakins, a labor and employment law firm representing management.
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