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Changes
Afoot for FMLA Unchanged over 15 years on the statute books, the federal
Family & Medical Leave Act has often been applied and construed
by Minnesota’s federal district and appellate courts. Change is now in the wind, as the Department
of Labor has issued proposed regulations that are expected to take
effect later this spring. This
winter—February 5, 2008, to be precise—marked the 15th anniversary
of the Family & Medical Leave Law (FMLA), 29 U.S.C. §2601, et seq. Unchanged for that entire period, the law includes some provisions
favorable to employers and others that give the nod to employees. The
federal law, which went into effect six months later, was the first
major piece of legislation enacted during the Clinton administration.
Now 15 years later, the measure that allows employees of large companies
to be granted unpaid time-off for personal and family medical purposes
is attracting renewed attention and some likely-successful proposals
for change. The
federal trial and appellate courts in Minnesota have been in the forefront
in construing and applying the measure over the years. The 15th anniversary
of the FMLA provides an opportune occasion to examine how it has been
treated by the courts in Minnesota over the years and anticipate how
it may change as it matures. The
first President Bush agreed, and he vetoed the measure. During the
1992 presidential campaign, Bill Clinton supported the proposition,
pledging to sign a new law. He was elected, the measure was reenacted,
and the new president signed the bill, barely two weeks into his administration.
Millions
of employees, including many in Minnesota, have utilized the law during
its 15 years. The latest data available from the U.S. Department of
Labor, which oversees the law, indicate that about 7 million employees
take FMLA leave each year. But
Minnesota does not have its own mini-FMLA. The closest comparable
measure, the Minnesota Parenting Leave Law, Minn. Stat. §181.941,
requires employers, regardless of size, to give time-off to employees
to care for a sick child or attend children’s school-related activities.
The measure allows a six-week unpaid leave of absence for birth or
adoption, as well as up to ten hours of time-off for school-related
events. The Minnesota measure, however, does not grant employees any
right of leave for their own medical conditions, and it is not enforced by any state agency
or regulatory body. Another
significant difference between the two measures is that the ADA has
its own enforcement mechanism, the Equal Employment Opportunity Commission
(EEOC), whereas the FMLA, while subject to interpretation by the Labor
Department, does not have an active counterpart enforcement body.
Although the Department of Labor can bring its own enforcement actions
for injunctive relief and for reinstatement of wrongfully discharged
employees, such proceedings are rare and most administrative actions
are done through opinion letters. Consequently, claims under the FMLA
almost invariably must be pursued through individual civil litigation
by employees—subject to a two-year statute of limitations, extended
to three years for “willful” violations—seeking recovery of damages,
including double liquidated damages and attorneys fees for a successful
claimant. Although state courts have jurisdiction under the FMLA,
nearly all actions are brought in federal court. Unlike
the ADA, which has been interpreted rather unfavorably for employees
by the courts, the FMLA has been kinder and gentler to the workforce.
But it has been buffeted by critics from several quarters of the workplace,
employers and employees alike, as reflected in a recent article in
the Wall Street Journal with the tantalizing title: “Is Family Leave Act
too soft or too tough?”1 Changes
Contemplated On
the eve of the 15th anniversary of the FMLA, the Labor Department,
after receiving some 15,000 overtures expressing varying views on
the subject, announced proposed changes in its regulations interpreting
the act. The
promulgated modifications mainly address complaints by businesses
that the measure is abused too often by employees. Under the newly
proffered changes, workers generally would be required to call-in
a request before taking a leave, except in emergencies, rather than
taking as much as two days off before asking for a leave, as is allowed
by the current regulation. The
new regulations also would allow businesses to require annual recertification
of the severity of an employee’s health condition for ongoing FMLA
claims, unlike the Minnesota measure that allows multiyear certification
by medical providers. But the Department of Labor rejected a call
for tightening the first-time-eligibility requirements, feeling any
such change should be left to legislation. The
changes are slated to take effect this spring, after a 60-day response
period, following official publication of the proposals at the 15th
anniversary of the act. The
proposals parallel provisions of the 2008 Defense Authorization Act,
signed by President Bush at the end of January, which allows family
members to now take up to six months of unpaid leave from work to
care for wounded military personnel. The law also permits up to 12
weeks off for a “qualifying emergency” relating to the call-up of
a family member for active military duty or deployment. While
the positions of interested parties concerning the FMLA differ, the
courts—including the federal appellate and trial tribunals in Minnesota—have
weighed-in during the past 15 years with their own opinions. In commemoration
of the 15th anniversary of the act, here’s a glimpse at 15 of the
more important and interesting rulings on the FMLA of the federal
and appellate trial courts governing Minnesota. Supreme
Situations Two
situations under the FMLA have been addressed by the United States
Supreme Court, and the justices have reached differing outcomes in
the two cases. Both of the cases have special relationships to the
8th Circuit. One of them resulted in a favorable ruling for employers
limiting the scope of leave requirements. The other broadened the
ambit of the law to cover state employees, and subsequently was applied
narrowly by the 8th Circuit in a case decided late last year. The
high court’s first encounter with the FMLA came in a case from the
8th Circuit, Ragsdale v. Wolverine
World Wide, Inc., 535 U.S. 81 (2002). The action was brought by
an employee who was terminated after she took a leave of absence under
her company’s 30-week leave policy but, when the period ended, was
denied an additional 12 weeks she requested under the FMLA. She sued,
pointing out that a Labor Department regulation required timely notice
by an employer of FMLA-designated leave to trigger the 12-week period.
The
8th Circuit, affirming the trial court, held that the employee’s suit
was improper and threw out her case.2 The Supreme Court, by a 5-4
margin, affirmed, ruling that the employee was “entitled to no more
leave” after the “generous” 30-week period provided by her company,
even though it was not designated as FMLA leave at the time. The Labor
Department’s regulation was “invalid because it alters the FMLA …
in a fundamental way”3 by expanding the amount of time that an employer
may be required to allow an absence. In
a rebuke to the federalism theme that had dominated the high court
during the period when Chief Justice William Rehnquist presided over
the tribunal, the Supreme Court upheld applicability of the FMLA to
state government bodies in Nevada Department of Human Resources v. Hibbs,
538 U.S. 1 (2003). In a ruling that surprised some observers, the
Court, in a decision authored by the chief justice himself, ruled
that state agencies are bound to follow the family-care provisions
of the FMLA. The
case was brought by a male employee of a state agency, who was fired
after a 12-week leave of absence he took under the FMLA in order to
care for his sick wife. He sued the state, which claimed that it was
immune from suit under the 11th Amendment, which generally bars damage
suits in federal court against state entities. The
Court held that the measure was proper under §5 of the 14th Amendment,
which empowers Congress to enforce that provision’s Due Process and
Equal Protection clauses by appropriate legislation. After reviewing
the legislative history of the measure regarding discrimination “limiting
women’s employment opportunities,” Chief Justice Rehnquist concluded
for the six-member majority that the FMLA constituted a valid exercise
of congressional authority under §5. Although the intent of the law
was to address discrimination against women, the Court applied it
to the male claimant because of the congressional desire to overcome
“invalid gender stereotypes in the employment context,”4 which constituted
sufficient justification for “enactment of prophylactic §5 legislation.”5
But
a recent ruling of the 8th Circuit viewed Hibbs narrowly. Late last year, in McKlintic v. 36th Judicial Circuit Court,
508 F.3d 875 (8th Cir. 2007), the court decided that the self-care
provision of the FMLA does not apply to states. Prior to Hibbs,
the 8th Circuit held that the 11th Amendment bars application of the
FMLA to states in Townsend v.
Missouri, 233 F.3d 1094 (8th Cir. 2000). Hibbs
overruled that case as it pertains to family care portions of the
act, but the appellate court early last year, in Miles
v. Bellfontaine Habilitation Center, 481 F.3d 1106 (8th Cir. 2007),
held that the FMLA provision allowing time-off for an employee’s own
health condition did not abrogate the 11th Amendment because
it was not predicated on the historical gender stereotypes that supported
legislation under §5 of the 14th Amendment, the premise of Hibbs.6
The single issue came before the circuit court later in the year in
McKlintic, and the court, relying on stare decisis, reached the same result,
holding that a state employee could not take time off for personal
“self-care.” Deficiencies
in employer-provided notice of FMLA leave, the subject of the Ragsdale case, have formed the basis for
subsequent 8th Circuit litigation from Minnesota. In Groesnick v. Smithkline Beecham Corp., 454 F.3d 832 (8th Cir. 2006),
the court affirmed a ruling of U.S. District Court Judge James Rosenbaum
rejecting a claim by an employee based upon allegedly defective notice
of FMLA leave from the employer. The employee, who was going to take
a leave for surgery and quarreled with the employer regarding the
start date of the FMLA leave, ultimately was terminated shortly after
her 12-week leave ended. Affirming Judge Rosenbaum’s ruling, the appellate
court held that, under Ragsdale, the employer did not violate
the FMLA because the 12-week leave period expired before the employee
sought to return to her job. Since Ragsdale
“did not find a cause of action when the employer gave no notice,
it followed that proper notice followed by confusion should not create
a claim.”7 But
the 8th Circuit reversed summary judgment for an employee who satisfied
the “serious health condition” requirement of the FMLA in Rankin v. Seagate Technologies, Inc., 246 F.3d 1145 (8th Cir. 2000).
U.S. District Court Judge Ann Montgomery dismissed the case brought
by an employee who was terminated for excessive absenteeism following
an FMLA leave. Applying an “objective test,” the 8th Circuit determined
that the employee met the three requirements of a “serious health
condition” to warrant continuing the FMLA leave: a “period of incapacity,
including absence from work,” that the “incapacity exceeded three
days,” and that the employee was under “continued treatment by [a
health care provider] during this period.”8 While the employee “did
not produce an overabundance of evidence” reflecting an affliction,
there was sufficient evidence in the record, including her own testimony
that she was “too sick to work,” which created a genuine issue of
material fact that precluded summary disposition. The court in Rankin
also allowed the employee to proceed with a common law claim
for infliction of emotional distress. The
8th Circuit later disowned distress damages for FMLA claimants in
Rodgers v. City of Des Moines, 435 F.3d
904 (8th Cir. 2006). Revisiting its prior jurisprudence, the court
concluded that it was “probably mistaken” in allowing emotional distress
damages in previous FMLA litigation, especially in light of the Supreme
Court’s statement in Hibbs
that recoverable damages are “strictly defined and measured by actual
monetary losses.”9 Because the FMLA specifically lists actual monetary
losses, the court joined a number of “sister circuits” in rejecting
a claim for emotional distress damages. Insufficient
employee notice, rather than insufficient notice by the employer,
as was argued in Ragsdale,
scuttled an FMLA claim in McGraw
v. Sears, Roebuck & Co., 21 F. Supp.2d 1017 (D. Minn. 1998).
The employee asserted violation of her FMLA rights on grounds that
she told her manager she had begun depression therapy and her mother
was ill. Judge Rosenbaum held that the FMLA claim could not be pursued
because there was no evidence that the employee gave “any notice …
to trigger her right to FMLA leave.” Because an “employer is not required
to be clairvoyant,”10 the absence of “a single request” for leave
barred her from asserting statutory violation. The court did deny
a motion for summary judgment on the employee’s age discrimination
claim, although her other claims, including the FMLA assertion, were
dismissed. An
employee’s failure to provide notice of a requested leave also barred
a claim in Schmittou v. Wal-Mart
Stores, Inc., 2003 WL 22075763 (D. Minn. 2003)
(unpublished). The employee sued after she was terminated for missing
work because of her daughter’s illness. Judge John Tunheim pointed
out that an employee does not have to invoke the FMLA by name, or
satisfy the notice requirements. But since the employee did not provide
“enough information to put [the employer] on notice [she] may be in
need of FMLA leave,” there was no “notice sufficient to trigger any
FMLA obligation on the part of the employer.” A state law claim under
the Parenting Leave Act also was rejected because the state law permits
employees only “to use their employer-provided sick benefits to care
for a sick child,” which the employer allowed the employee to do in
this case. The
arbitrability of an FMLA claim was rejected by Judge David Doty in
Neppl v. Signature Flight Support Corp.,
234 F.Supp.2d 1016 (D. Minn. 2002). An employee, a member of a union,
was fired because of an unexcused absence, which occurred near the
end of an FMLA leave. The employer’s contention that the claim must
be arbitrated under the collective bargaining agreement with the employee’s
union was rejected under the reasoning of Alexander
v. Gardner Denver Co., 415 U.S. 36 (1974), which generally preserves
the right to litigate statutory claims even if subject to resolution
under the collective bargaining agreement. Feeling constrained by
the precedent, Judge Doty declined to hold that arbitration was the
exclusive remedy, and allowed the FMLA claim to proceed. In
Gonzalez v. City of Minneapolis, 267 F.Supp.2d 1004(D. Minn. 2003),
a Minneapolis employee, terminated for tardiness and absenteeism,
sued for violation of the FMLA and other statutory and common law
claims. His FMLA claim was based on retaliation for taking an FMLA
leave, which U.S. District Court Judge Paul Magnuson rejected because
it failed to satisfy the required “causal” connection between his
termination and any “protected activity” under the FMLA. The employee’s
claim was based solely on the short time between the one-month FMLA
leave and his termination four months later, which was too remote
to establish a causal nexus. All of his other claims were also dismissed,
except his retaliation claim under the Workers Compensation Act, which
raised factual issues, precluding summary judgment. The
change in job duties for an advertising executive after returning
from an FMLA leave barred summary judgment in Johnson
v. Campbell Mithun, 411 F.Supp.2d 964 (D. Minn. 2005). Judge Tunheim
held that the “very low level” of work given to the employee after
she returned from leave created fact issues whether the employer interfered
with her FMLA rights or retaliated against her. The employer’s expression
of concern about the employee’s medical condition, coupled with no
attempt to find her another position within the company, also made
a retaliation claim actionable. Judge
Tunheim also upheld parallel interference and retaliation claims under
the FMLA in McCarthy v. Eschelon
Telecom, Inc., 2006 WL 2403602 (D. Minn. 2006) (unpublished).
The employee’s assertion that she was placed on a performance-improvement
program after she requested an FMLA leave and then was fired after
her FMLA leave was exhausted and she failed to request an extension
created a triable case for interference or retaliation under the statute.
Because the employee had been led to believe she had complied with
the requisite procedures and had “given proper notification regarding
her requested leave,” the performance reasons for her termination
could be viewed as pretextual and, therefore, created a triable issue
regarding FMLA retaliation. A
request by a new employee for maternity leave, less than one year
after beginning work, did not invoke a right under the FMLA in Scheidecker v. Arvig Enterprises, Inc., 122 F. Supp.2d 1031 (D. Minn. 2000). Although finding triable
issues regarding pregnancy-related discrimination claims under Title
VII of the Federal Civil Rights Act, Judge Montgomery held that the
employee’s claim that she was terminated as retaliation for requesting
a maternity leave 11 months after beginning work was not actionable
because the employee did not qualify as an “eligible employee” under
the FMLA, since she “was not employed ... for one full year before
requesting maternity leave.”11 A
terminated airlines employee was not preempted from pursuing an FMLA
claim in Gilmore v. Northwest Airlines, Inc., 504 F. Supp.2d 649 (2007). The employee
was fired on the day she returned to work from an FMLA leave, on grounds
of poor attendance, including expiration of the leave period. The
employer claimed that the FMLA suit could not proceed because the
employee’s rights were governed by the Railway Labor Act, which requires
mandatory arbitration for all “minor disputes,” under 45 U.S.C. §184.
Judge Richard Kyle rejected the employer’s preemption claim, holding
that the termination was not a “minor” dispute and could be resolved
under the FMLA “without any reference to the collective bargaining
agreement.”12 Democrats
have urged expansion of the law in several respects, including making
it applicable to small and midsize employers. An idea floated during
the Clinton administration in the 1990s, incorporating some type of
payment to employees on leave through the unemployment compensation
system, might also be revived if Democrats continue to control Congress.
In
some Republican quarters, the FMLA has never been greeted warmly and
pockets of aversion continue to exist in the GOP ranks, especially
regarding the relatively lax medical requirements to certify a disability
that some in the business community feel are too easily abused. Some
Republican leaders have, in the past, sought to curtail the measure,
but the law has become so entrenched in the workplace that significant
retrenchment is unlikely. So,
as the FMLA reaches 15 years old, it’s far from a finale.
Notes 2
Ragsdale v. Wolverine
Worldwide, Inc., 218 F.3d 933 (8th Cir. 2000). 3
Ragsdale v. Wolverine
World Wide, Inc., 535 U.S. 81, 90 (2002). 4
Nevada Department of Human
Resources v. Hibbs, 538 U.S. 1, 10 (2003). 5
Id., at 12. 6
Miles v. Bellfontaine
Habilitation Center, 481 F.3d 1106, 1107 (8th Cir. 2007) (per
curiam). 8
Rankin v. Seagate Technologies,
Inc., 246 F.3d 1145, 1147 (8th Cir. 2000). 9
Hibbs, supra n. 4, at 20. 10
McGraw v. Sears, Roebuck
& Co., 21 F. Supp.2d 1017, 1022 (D. Minn. 1998). 11
Scheidecker v. Arvig Enterprises,
Inc., 122 F. Supp.2d
1031, 1045 (D. Minn. 2000). 12
Gilmore v. Northwest Airlines,
Inc., 504 F. Supp.2d
649, 655 (2007). 13
29 CFR §825.100, et seq. |
