Shedding light on how FMLA works

Q. Melissa works as a human resource manager for a growing high-tech company. An employee who has just returned to work from maternity leave is seeking additional time off under the Family and Medical Leave Act to care for her sick child. The employee’s supervisor would like to reassign the employee to second shift because the intermittent leave being requested will be a great inconvenience to his department. What concerns does Melissa need to address?
A. It is important for employers to take the time to understand the Family and Medical Leave Act — a law that is often difficult for employers to practically apply to their business and employees.

Melissa needs to focus on how to calculate the employee’s remaining leave in light of her maternity leave and how to administer intermittent leave. She also needs to be concerned about supervisors taking adverse action against an employee requesting leave, especially in light of a recent decision broadening FMLA’s application.

The Third Circuit decision of Erdman v. Nationwide Insurance Company offers two good lessons to employers. First, employers need to have an explicit policy as to whether or not employees may work hours above and beyond that dictated by their position. Second, employees are entitled to FMLA’s protections at the time they invoke their rights under the law, not at the time they actually take the leave.

Brenda Erdman was hired to work a full-time position at Nationwide in 1980, and remained a full-time employee until 1998 when her daughter was born with Down’s syndrome. At that time, she asked to work part-time, and she was allowed to report extra hours that she worked as “comp” time. Later, her supervisor told her that she should only report those hours that she was “supposed to” be reporting.

Soon after, her supervisor changed, and she sent her new supervisor an e-mail clarifying whether or not she was able to report comp time. This e-mail went unanswered. However, Erdman and the supervisor soon had a meeting regarding a discrepancy in Erdman’s vacation time, and Erdman explained that she had used comp time in lieu of vacation time. This went unchallenged. A week later, Erdman received an e-mail from the supervisor admonishing Erdman because her overtime was not approved.

Two weeks later, in February 2003, Erdman was informed that she could no longer use comp time. This was the first time she was told not to work comp time.

Soon after, Erdman’s part-time position was eliminated, and she was offered a full-time position with the company. Despite being unhappy with this change, she accepted. At the time she accepted the position, Erdman asked Nationwide if her earlier request for vacation time for the month of August would be honored. She was informed that she could not use her vacation time because of the high number of Nationwide employees seeking vacation time during that month.

Erdman informed Nationwide that she was requesting the time off in August to care for her daughter and prepare her for the upcoming school year, and further informed them that if her vacation was denied, she would request FMLA leave. In April 2003, Erdman submitted FMLA paperwork.

On May 9, 2003, Erdman was fired. Nationwide cited behavioral problems as the reason for her termination, in part due to her response to being unhappy with the change in her position from part-time to full-time. Erdman subsequently filed suit against Nationwide for violation of FMLA.

After determining Erdman’s eligibility under the law, the court addressed whether Erdman was protected by FMLA because she had yet to actually take the leave, and it came to the emphatic conclusion that she was protected. The court specifically noted that it would be “patently absurd” to allow an employer to escape responsibilities under FMLA simply by firing an employee before he or she was actually able to take the leave.

After discussing what it means to “take” FMLA leave, the court stated that “we interpret the requirement than an employer ‘take’ FMLA leave to connote invocation of FMLA rights, not actual commencement of leave.” Such an action may constitute both interference with FMLA rights and retaliation for taking FMLA leave.

Employers should have a firm policy for overtime and comp hours to avoid liability for an employee who might otherwise not be protected under FMLA. Supervisors should therefore be trained in the employer’s policies and must understand the ramifications of allowing employees to violate the policies.

Employers also must be careful about who they consider to be FMLA-eligible. As soon as an otherwise eligible employee submits his or her FMLA request to the employer, the employee has invoked his or her FMLA rights and is afforded the protections of the statute. If an employer interferes with those rights or retaliates due to the invocation of those rights, even if the employee has yet to take the leave it may be found to have violated FMLA and will be held responsible for paying damages to the employee.

Katie Kiernan, an attorney in the Litigation Department at the law firm of McLane, Graf, Raulerson & Middleton, can be reached at 603-628-1490 or katie.kiernan@mclane.com.

A. It is important for employers to take the time to understand the Family and Medical Leave Act — a law that is often difficult for employers to practically apply to their business and employees.Melissa needs to focus on how to calculate the employee’s remaining leave in light of her maternity leave and how to administer intermittent leave. She also needs to be concerned about supervisors taking adverse action against an employee requesting leave, especially in light of a recent decision broadening FMLA’s application. The Third Circuit decision of Erdman v. Nationwide Insurance Company offers two good lessons to employers. First, employers need to have an explicit policy as to whether or not employees may work hours above and beyond that dictated by their position. Second, employees are entitled to FMLA’s protections at the time they invoke their rights under the law, not at the time they actually take the leave.Brenda Erdman was hired to work a full-time position at Nationwide in 1980, and remained a full-time employee until 1998 when her daughter was born with Down’s syndrome. At that time, she asked to work part-time, and she was allowed to report extra hours that she worked as “comp” time. Later, her supervisor told her that she should only report those hours that she was “supposed to” be reporting.Soon after, her supervisor changed, and she sent her new supervisor an e-mail clarifying whether or not she was able to report comp time. This e-mail went unanswered. However, Erdman and the supervisor soon had a meeting regarding a discrepancy in Erdman’s vacation time, and Erdman explained that she had used comp time in lieu of vacation time. This went unchallenged. A week later, Erdman received an e-mail from the supervisor admonishing Erdman because her overtime was not approved.Two weeks later, in February 2003, Erdman was informed that she could no longer use comp time. This was the first time she was told not to work comp time. Soon after, Erdman’s part-time position was eliminated, and she was offered a full-time position with the company. Despite being unhappy with this change, she accepted. At the time she accepted the position, Erdman asked Nationwide if her earlier request for vacation time for the month of August would be honored. She was informed that she could not use her vacation time because of the high number of Nationwide employees seeking vacation time during that month.Erdman informed Nationwide that she was requesting the time off in August to care for her daughter and prepare her for the upcoming school year, and further informed them that if her vacation was denied, she would request FMLA leave. In April 2003, Erdman submitted FMLA paperwork.On May 9, 2003, Erdman was fired. Nationwide cited behavioral problems as the reason for her termination, in part due to her response to being unhappy with the change in her position from part-time to full-time. Erdman subsequently filed suit against Nationwide for violation of FMLA. After determining Erdman’s eligibility under the law, the court addressed whether Erdman was protected by FMLA because she had yet to actually take the leave, and it came to the emphatic conclusion that she was protected. The court specifically noted that it would be “patently absurd” to allow an employer to escape responsibilities under FMLA simply by firing an employee before he or she was actually able to take the leave.After discussing what it means to “take” FMLA leave, the court stated that “we interpret the requirement than an employer ‘take’ FMLA leave to connote invocation of FMLA rights, not actual commencement of leave.” Such an action may constitute both interference with FMLA rights and retaliation for taking FMLA leave.Employers should have a firm policy for overtime and comp hours to avoid liability for an employee who might otherwise not be protected under FMLA. Supervisors should therefore be trained in the employer’s policies and must understand the ramifications of allowing employees to violate the policies.Employers also must be careful about who they consider to be FMLA-eligible. As soon as an otherwise eligible employee submits his or her FMLA request to the employer, the employee has invoked his or her FMLA rights and is afforded the protections of the statute. If an employer interferes with those rights or retaliates due to the invocation of those rights, even if the employee has yet to take the leave it may be found to have violated FMLA and will be held responsible for paying damages to the employee.

Katie Kiernan, an attorney in the Litigation Department at the law firm of McLane, Graf, Raulerson & Middleton, can be reached at 603-628-1490 or katie.kiernan@mclane.com.