Communication Leaves Employer in Court over FMLA Lawsuit
The only thing that was needed to keep FX Direct out of an employment dispute and the ensuing lawsuit was adequate communication and notifications.
The employer’s handbook contained two separate sections. One section referred to 12 weeks of Family Medical Leave Act leave and another section titled “maternity leave.” The maternity leave section referred to 8 weeks of paid leave, followed by the option to take an additional 4 weeks of unpaid leave. Both sections failed to state that maternity leave would occur simultaneously with FMLA leave.
The employee submitted a formal request for time off through email titled “Maternity leave.” She asked to use her vacation first and then the maternity leave that was specified in the handbook.
After taking the 12 weeks of maternity leave, the employee stayed on leave, believing that her FMLA leave would then begin. She states that she tried to reach out to her employer multiple times for clarification and confirmation, but did not get a response.
After she failed to return to work at the end of the first 12 weeks, she was fired.
The lawsuit claims that her firing is in violation of her FMLA leave, which started after her 12 weeks of maternity leave.
However, the HR manager has stated that according to her experience in other jobs, both maternity and FMLA leave should run consecutively.
This is where the water gets muddy for the employer. While the HR manager assumed concurrent leaves, her manager, a VP, assumed otherwise. The VP manager testified that she thought the leaves would run consecutively. This shows an unclear policy even within the management of the company.
FMLA Penalties Nearly Certain
If FMLA leave is considered to have run consecutively with the employer’s maternity leave, then the employer would likely be liable for fines for failure to disclose and notify the employee of FMLA leave.
However, if it is determined that FMLA leave ran consecutively and started after the employee’s maternity leave, then the employer would be subject to the fines and restitution required under FMLA law.
These fines, penalties and possible retribution is in addition to the legal costs the employer is already facing to defend themselves in court and in addition to the public reputation loss the employer has suffered.
Failure to Provide FMLA Notice, a Warning to Employers
The failure for FX Direct to communicate with the employee shows how vital it is that employers have both formal and informal communication with employees regarding FMLA leave. In fact, notification is a vital component to FMLA leave.
FMLA rules require that employers not only provide notice regarding FMLA rights, but also regarding leave approvals. FMLA requires that within 5 days of the initial leave request employers provide notice of the employee’s eligibility. Another rule states that employees don’t have to specifically request FMLA leave to be protected under the law.
In this example, the employee did not request FMLA leave until she looked forward to starting FMLA as her maternity leave expired. If the employer considered her maternity leave to be running concurrently with FMLA leave, then she should have been informed that the leaves would run concurrently. She should have been provided with a notice of FMLA leave and eligibility within 5 days of her request for maternity leave.
Concurrent Leave is an Option for Employers
Many employers choose to run employer benefit leaves concurrently with FMLA leave or other state leave laws. In fact many state sick leave and FMLA laws are written for specific instances of concurrent coverage.
However, it is vital that policies regarding leave be clearly defined in the employee handbook.
It is also imperative that employers clearly communicate concerning concurrent leaves to employees and remember to provide FMLA eligibility notice within days of the employee requesting leave.
Even if the employee did not request FMLA leave, it may count as FMLA leave if it qualifies under FMLA rules and if the employee is notified that FMLA leave is being taken.
For now, DX Direct and their former employee will continue onto a jury trial where it will be decided whether or not FMLA leave and the employee’s reinstatement rights were violated.
Let SwipeClock Help
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In addition to all the local and state laws many businesses have to comply with, these businesses have to also comply with Federal Overtime Laws, the Family Medical Leave Act and any other national or local laws that are enacted.
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Written by Annemaria Duran. Last updated on August 16, 2017