Proper FMLA Notice Is Not a Mere Technicality

By Roger S. Achille Nov 15, 2017
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​The U.S. District Court for the Southern District of Florida refused to dismiss as a mere technical violation a former employee's claim that she was not provided proper notice under the Family and Medical Leave Act (FMLA) when the employee also claimed damages resulted from the lack of proper notice.

In 1994, Jeanne Canigiani began working for Banc of America Merchant Services (BOA) and, according to her, was considered a good employee who received satisfactory performance feedback throughout her employment.

In September 2015, Canigiani fell down the stairs at work and sustained serious injuries. She alleged that she immediately reported the fall to her supervisors and requested medical treatment. Subsequently, she took time off from work for medical visits to treat migraines and pain to her neck, back and shoulders caused by the fall. Canigiani asserted that once she began taking time off for doctor visits, BOA began to micromanage her work and look for excuses to reprimand her.

She later notified BOA that she would need additional time off to continue medical treatments for her medical condition and injuries that resulted from the fall. Canigiani never received notification of her potential rights under the FMLA. On Aug. 17, 2016, BOA fired Canigiani, explaining that she was terminated because she "did not make her quota."

Among Canigiani's multiple claims against BOA was that it interfered with her FMLA rights by failing to notify her of her FMLA rights after she provided BOA notice of her serious health condition and that she suffered damages as a result. BOA, however, argued that this particular claim should be dismissed because no cause of action exists for "mere technical violations of the notice requirement" and that Canigiani failed to plead any damages beyond a "formulaic recitation."

The FMLA places requirements on both the employee and employer. If the leave is needed due to an unforeseeable workplace injury, the employee is required to give notice as early as is practicable and the notice need only contain "sufficient information for the employer to reasonably determine whether the FMLA may apply to the leave request." The employee need not mention the FMLA.

Once an employee has notified an employer that he or she may qualify for leave under the FMLA, the employer is obligated to provide three types of notice:

  • "Eligibility notice" requires the employer to inform the employee whether he or she is eligible to take FMLA leave.
  • "Rights and responsibilities notice" requires the employer to inform the employee of any obligations or responsibilities the employee may have under the employer's leave policy.
  • "Designation notice" requires the employer to inform the employee if the leave requested will be designated as FMLA-qualifying.

[SHRM members-only toolkit: Coordinating Leaves of Absence]

Failure to provide these notices may qualify as actionable interference, restraint or denial of an employee's rights under the FMLA, entitling an employee to damages or equitable relief.

While a plaintiff must demonstrate that he or she was injured in some way by a defendant's alleged violation of the FMLA, the district court stated that a plaintiff "need only demonstrate some harm remediable by either 'damages' or 'equitable relief.' "

It noted that Canigiani had neither conceded that she had no damages or remedy under the FMLA, nor had she had an opportunity to prove damages but failed to do so. In addition, the district court remarked that there had been no finding or unopposed argument that her termination was lawful or that she was a "key employee" under the FMLA, situations that might have limited Canigiani's available remedies.

Considering that Canigiani pleaded that she was damaged as a result of the defendant's failure to notify her of her FMLA rights and that she demanded in her pleadings, among other relief, "actual damages suffered, including back pay, front pay, loss of benefits, future pecuniary loss and lost future earnings capacity," the district court found her allegations sufficient to survive BOA's motion to dismiss.

Canigiani v. Banc of America Merchant Services LLC, S.D. Fla., No. 17-cv-61270 (Oct. 3, 2017).

Professional Pointer: Employers should consider training front-line managers, who often serve as an initial contact for leave requests, to recognize what is sufficient information from an employee to reasonably determine whether the FMLA may apply to the leave request so that the required notices and process can be timely initiated.

Roger S. Achille is an attorney and professor at Johnson & Wales University in Providence, R.I.

 

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