The Family Medical Leave ActâTen Years Later
T he Family and Medical Leave Act of 1993 (FMLA) recently celebrated its tenth anniversary.1 C ongress’ stated reason for enacting the FMLA was “to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.” The FMLA requires employers of 50 or more employees in a 75-mile radius to provide up to 12 weeks of unpaid leave each year due to the “serious health condition” of an employee or member of the employee’s immediate family or for the birth or adoption of a child. Over the past 10 years, this landmark legislation governing the employment relationship has resulted in a flurry of litigation. This article will review the published decisions of the U. S. Supreme Court and the U. S. Court of Appeals for the 11th Circuit Court interpreting the FMLA and discuss the impact of these decisions on the future of the FMLA.
Supreme Court Decisions
• Nevada Department of Human Resources et al. v. Hibbs et al.,123 S. Ct. 1973 (2003)
This past term, the Supreme Court decided that state employees may recover money damages for their employer’s failure to comply with the FMLA.2 In Hibbs, a former employee requested that his employer, the State of Nevada, grant him 12 weeks of FMLA leave to care for his ailing wife, who was recovering from a car accident and neck surgery. The state granted the requested leave. Upon the expiration of the employee’s leave, the state requested that the employee return to work. When the employee failed to return to work, he was terminated. The former employee sued the state under the FMLA seeking damages and injunctive and declaratory relief. The district court awarded the employer’s motion for summary judgment on the grounds that the FMLA claim was barred by the 11th Amendment and that respondent’s 14th Amendment rights had not been violated. The employee appealed and the Ninth Circuit reversed. In affirming the decision of the Ninth Circuit, the Supreme Court held that the FMLA explicitly includes states within its scope, and is a proper use of congressional power under the 14th Amendment.3
• Ragsdale v. Wolverine World Wide, Inc., 122 S. Ct. 1155 (2002)
In the first Supreme Court decision involving the FMLA, the Supreme Court examined the validity of a Department of Labor regulation interpreting the FMLA. In Ragsdale, an employee, who developed cancer, requested and was granted leave for 30 consecutive weeks by her employer. The employer did not notify her, however, that 12 weeks of that time would be counted as FMLA leave. After 30 weeks of absence, the employee requested further leave time. The employer denied the additional leave and terminated her employment when she did not return to work. The employee filed suit claiming that because her employer failed to notify her that 12 weeks of her leave would be counted as FMLA leave, she actually was entitled to an additional 12 weeks of leave under Department of Labor Regulations.4
The Supreme Court described the “FMLA’s most fundamental substantive guarantee” as “the employee’s entitlement to a total of 12 workweeks of leave during any 12-month period.” The Supreme Court went on to strike down the Department of Labor regulation,5 which mandated that, “If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee’s FMLA entitlement.”6 The result of the regulation had been that employers were categorically required to give an employee an additional 12 weeks of FMLA leave if the employer failed to comply with the notice regulations.7 This categorical penalty for a notice violation “subvert[ed] the careful balance [between employers’ and employees’ interests], for it gives certain employees a right to more than the 12 weeks of FMLA-compliant leave in a given one-year period.”8 The Supreme Court noted that the effect of the regulation was to penalize employers who give more generous benefits than the FMLA requires, because only generous employers risk the burden of an additional 12 weeks if they improperly designate FMLA time during their own longer leave policies.9
11th Circuit Decisions
• Queen Ester Gay v. Gilman Paper Company, 125 F. 3d 1432 (11th Cir. 1997)
In Gilman the first decision of the 11th Circuit involving the FMLA, the court examined the type of notice an employee must give his or her employer under the FMLA. The 11th Circuit affirmed the decision of the lower court granting summary judgment in favor of an employer where the employee’s husband told the employer that his wife would not be coming into work because she was in the hospital for tests, but refused to disclose the reasons for her hospital stay and did not keep in touch with the employer.10 The court found the husband’s phone call to the employee’s supervisor did not supply the employer with sufficient information to make the employer aware that employee’s absence was due to a potentially FMLA-qualifying reason.11
• Rosemary J. Wascura v. Neil Carver, 169 F. 3d 683 (11th Cir. 1999)
In Wascura, the 11th Circuit examined whether a public official can be sued in his individual capacity under the FMLA.12 The court, in reversing a motion to dismiss, held that public officials in their individual capacities are not “employers” under the FMLA, and there is no federal subject matter jurisdiction over such claims.13 The court determined that the term “employer” in the FMLA should be interpreted consistently with the similar definition set forth in the FLSA.14 Based upon this determination, the court found no individual liability for public officials under the FMLA relying upon its decision in Welch v. Laney, 57 F.3d 1004 (11th Cir.1995), in which the court had concluded that a local sheriff was not an “employer” under the FLSA when he acted in his individual capacity because the sheriff had no control over the plaintiff’s employment when acting in his individual capacity.15
• Tom McGregor v. Autozone, Inc., 180 F. 3d 1305 (11th Cir. 1999)
In McGregor, an employee took 15 weeks of paid leave, and was demoted when she returned to work.16 She sued under the FMLA. The employer argued that because the employee had taken more than 12 weeks of leave, she was not protected.17 The employee claimed her 12 weeks had not expired because her employer failed to notify her that it was designating the leave as FMLA leave. The employee relied on a federal regulation18 providing that an employer’s failure to give such notice means that the leave was not FMLA leave. Under the regulation, the employer would have to provide up to 12 weeks of unpaid FMLA leave in addition to the 15 weeks of paid leave it had already provided.
The court determined that, because the employer had voluntarily gone well beyond what the FMLA required, this outcome would be contrary to the statute. The court therefore held that the regulation was invalid.19
• Tia Graham v. State Farm Mutual Insurance Company, 193 F. 3d 1274 (11th Cir. 1999)
In Graham, the 11th Circuit affirmed the lower court’s decision granting summary judgment in favor of an employer where an employee received all the FMLA leave that she had requested and was paid for the majority of her leave. The court of appeals held that an employee suffers no FMLA injury when she receives all the leave she requests, and is paid for most of it.20Additionally, the court found that the employee did not suffer retaliation under the FMLA based on a supervisor’s memorandum warning the employee against future non-FMLA absences.21
• Debra Lee O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349 (11th Cir. 2000)
In O’Connor, an employee was terminated while she was on FMLA leave. The employee then brought a lawsuit against her employer alleging that she had been denied her right to reinstatement under the FMLA. The 11th Circuit held that when an “eligible employee” on FMLA leave is terminated then alleges that her employer denied her FMLA right to reinstatement, the employer has an opportunity to demonstrate it would have discharged the employee even had she not been on FMLA leave.22 The district court found that the employer slated the employee for termination as part of the first phase of its reduction in force, the legitimacy of which was not challenged by the employee. Therefore, the 11th Circuit concluded that the employer was justified in terminating the employee even while she was on FMLA leave.23
• Debra K. Earl v. Mervyn, Inc., 207 F. 3d 1361 (11th Cir. 2000)
In Earl, a former employee who was terminated for tardiness brought suit against her employer, claiming violations of the FMLA.24 The lower court granted summary judgment in favor of the employer, and the employee appealed.25 The 11th Circuit affirmed the lower court’s decision holding that the employee failed to demonstrate that her termination was caused by her request for disability leave under the FMLA where she was terminated for repeated and numerous punctuality infractions.26
• Maurice Parris v. The Miami Herald Publishing Company, 216 F. 3d 1298 (11th Cir. 2000)
In Parris, a former employee brought a wrongful termination action against FMLA.27 The lower court entered summary judgment in favor of the former employer and the former employee appealed.28 The 11th Circuit reversed the lower court and held that genuine issues of material fact existed as to whether the employer had scheduled the employee’s termination prior to the time he took sick leave, and thus whether the employee had a right to reinstatement, precluding summary judgment.29
• Robin Amaro Brungart v. Bellsouth Telecommunications, Inc., 231 F. 3d 791 (11th Cir. 2000), cert. denied, 532 U.S. 1037 (2001)
In Brungart, a former employee sued her former employer under the FMLA claiming that she was terminated for requesting FMLA, that the company violated the FMLA by refusing her leave request, and that the company violated the FMLA because it did not give her regular notice of her rights under the statute and failed to give her written notice granting or denying her request for leave.30 The employee requested emergency FMLA leave to care for her mother who had been hospitalized unexpectedly.31
When the employee returned to work after her mother’s condition improved, she found that her employer had denied her leave because she had not worked 1,250 hours in the past 12 months, the minimum number of hours the statute requires before an employee is eligible for protected leave.32 She had worked for her employer for only three months after completing a training program to be a service representative. The employee was later fired for failing to meet required performance percentages. The official who decided to terminate her was not aware that her last workday would be the day before she was to begin already-approved leave for knee surgery. The lower court granted summary judgment in favor of the employer.33
In affirming the decision of the lower court, the 11th Circuit first addressed the employee’s contention that her employer’s failure to inform her of her eligibility for FMLA leave within the two-day time period required under a federal regulation34 made her eligible for leave, or, at least, prevented her employer from denying her leave.35 The employee argued that this denial of leave was improper. However, at the time the employee first requested leave, she was not eligible for leave. The court rejected the employee’s argument and found the federal regulation was invalid “to the extent it converts ineligible employees into eligible employees, contrary to the express language of the FMLA.”36
Next, the court found the employee’s claim of retaliatory discharge to be without merit.37 The court noted that although the statute protects employees who apply for FMLA leave from retaliation by their employers, the employee did not adduce sufficient evidence of discrimination to support her claim that her termination was the result of her request for leave.38
The court stated that the temporal proximity between the firing and the date the leave was to begin was not, by itself, sufficient to raise an inference as to causation.39 Furthermore, there was undisputed evidence that the official who decided to fire the employee did not know she was scheduled to take FMLA leave.40 The court also said that the employee had no basis for her argument and even if the employer’s decisionmaker did not have knowledge of an employee’s engaging in a protected activity, knowledge could be “imputed” to the corporation where other corporate officials or supervisors knew about the planned leave.41 The court determined that the fact that an employer is a corporation does not relieve the employee of her burden of showing a connection between the protected conduct and the decision to take the adverse employment action.42
• Brenda Cash v. Sylvia Smith, 231 F.3d 1301 (11th Cir. 2000)
In Cash, an employee sued her employer under the FMLA. The district court entered summary judgment for the employer, and the employee appealed. The 11th Circuit in upholding the lower court’s decision held that the employee failed to present evidence that she exercised a protected right under the FMLA, thus defeating her FMLA retaliation claim, where the employee did not provide the employer with adequate certification that her condition was protected by the FMLA.43 Additionally, the 11th Circuit ruled that the employee failed to establish any unlawful disclosures under the FMLA where she voluntarily disclosed her medical condition.44
• Russell Strickland v. Water Works and Sewer Board of the City of Birmingham, 239 F. 3d 1199 (11th Cir. 2001)
In Strickland, a former employee sued his employer claiming that he was terminated in violation of the FMLA after he left the job site because he was suffering a diabetic attack and could not perform the tasks assigned him.45 The lower court granted summary judgment in favor of the employer holding that the FMLA provided the plaintiff no relief because, at the time of his discharge, he had not exhausted the paid sick leave provided by his employer, and the act provides no relief to an employee under such circumstances.46 Alternatively, the lower court, treating the plaintiff’s complaint as alleging an FMLA “retaliation claim,” as opposed to an “interference claim,” found no merit in the plaintiff’s allegations.47
The 11th Circuit vacated the lower court’s decision and held that the question of whether an employee is entitled to receive paid sick leave is irrelevant to his right to FMLA protection.48 The court also concluded that the lower court erred in reading the plaintiff’s complaint as alleging only a retaliation claim.49 The court found that the plaintiff had made out an interference claim, and it would survive a motion for summary judgment because a “swearing match” between the plaintiff and his immediate supervisor concerning why the plaintiff left the job site created a material issue of fact.50
• Rosemary J. Wascura v. City of South Miami, 257 F. 3d 1238 (11th Cir. 2001)
In Wascura II, an employee claimed that her employer violated the FMLA when it terminated her a few months after learning of her intent to take leave to care for her son but prior to the time that she intended to take the FMLA leave.51
The employer argued that the employee’s claim was really one for retaliation.52 The lower court rejected this argument and characterized the employee’s claim as one for interference with her FMLA rights. The 11th Circuit held that the district court’s order granting summary judgment to the employer on the employee’s FMLA claim was appropriate.53 The court concluded that employee failed to raise a genuine issue of fact with respect to the causation element of her prima facie case.54 Additionally, the employee failed to create a genuine issue of fact with respect to any causal connection between her notice to her employer of her potential need to take time off and her termination.
Aside from the temporal proximity, the employee introduced virtually no evidence of a causal connection. In light of the other evidence in the record, the court found that a three and one-half month temporal proximity is insufficient to create a jury issue on causation.55
• Arthur Leroy Smith v. Bellsouth Telecommunications, Inc., 273 F. 3d 1303 (11th Cir.)
In Smith, an applicant for reemployment brought an action against his prospective employer alleging that the employer retaliated against him based upon his prior use of FMLA leave during his previous term of employment.56 The lower court granted judgment for the employer and the applicant appealed. The 11th Circuit in reversing the lower court, held, as a matter of first impression, that the applicant was an “employee” within meaning of the enforcement provisions of the FMLA.57 The court found that term “employee” as used in a provision of the FMLA prohibiting discrimination against employees for taking FMLA leave is ambiguous. The court reasoned that the Department of Labor’s interpretation of the FMLA provision granting employees a private remedy against their employers to prohibit discrimination against former employees who previously took FMLA leave is reasonable.58 Ultimately, the court found that genuine issues of material fact precluded summary judgment for the employer on the applicant’s FMLA retaliation claim.
• David L. Morrison v. Amway Corporation, 323 F. 3d 920 (11th Cir. 2003)
In Morrison, a terminated employee sued his former employers, alleging unlawful retaliation in violation of the FMLA. The employers moved to dismiss for lack of subject matter jurisdiction, alleging that the employee was not an “eligible employee” under the FMLA. The district court granted the employers’ motion to dismiss and the employee appealed. The 11th Circuit reversed and remanded the decision to the lower court finding that the district court should have employed a summary judgment standard in reviewing the employers’ motion to dismiss.59
Overall, out of the 15 decisions cited above, five decisions were decided in favor of the employee and 10 decisions were decided in favor of the employer. The validity of Department of Labor regulations interpreting the FMLA were challenged in three of the decisions cited above. In all three of those decisions, the courts found Department of Labor regulations invalid.
Since the FMLA came into effect in 1993, the validity of Department of Labor regulations has been challenged in more than 50 reported decisions. A common complaint among employers is that the regulations are hyper-technical and do not provide any clear direction as to the application of the FMLA. The Supreme Court and the 11th Circuit may agree as they generally have applied a greater rule of reason in construing the meaning and intent of the FMLA than that which is presented by the regulations.60
Over the past decade, at least 40 million workers have taken job-protected leave under the FMLA, with the median leave totaling 10 days away from work. More than 30 million U.S. workers — about 40 percent of the workforce — are not covered by the FMLA because they work for companies with fewer than 50 employees.61 Unions and other workplace advocates would like to expand the coverage of the FMLA to smaller employers62 and to make the leave paid.63 On the other side of the political spectrum, businesses have lobbied for legislation to narrow the scope of the FMLA.64 If the coverage of the FMLA is expanded in the future, it will undoubtably lead to additional litigation and to more published FMLA decisions in the coming years.
1 The FMLA was enacted on February 5, 1993, and became effective on August 5, 1993. Pub.L. No. 103-3, 107 Stat. 6 (1993) (codified as amended at 29 U.S.C. §2601, et seq.).
2 Hibbs, 123 S. Ct at 1982–84.
3 This decision contrasts with the justices’ earlier rulings on the issue of whether states can be sued under the Age Discrimination in Employment Act, in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), and under the Americans With Disabilities Act, in Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001). In both Kimel and Garrett the Supreme Court found that Congress exceeded its authority when it authorized suits against the states under the ADA and the ADEA. According to Chief Justice Rehnquist, who wrote the opinion for the majority in Hibbs, this case differs from the Supreme Court’s previous rulings on state immunity from suit by employees in Kimel and Garrett because the FMLA does not apply to every aspect of state employers’ operations, but affects only one part of the employment relationship. He explained that Congress accomplished this narrow application by targeting “the fault line between work and family — precisely where the sex-based overgeneralization has been and remains strongest.” He also noted the “many other limitations” Congress placed on the scope of the FMLA, again contrasting the statute with the remedies available under the ADA and the ADEA. For example, the damages provision of the FMLA allows recovery only for “actual monetary losses” and for two years of back pay (three years for willful violations of the statute).
4 Ragsdale, 122 S. Ct. at 1159.
5 29 C.F.R. §825.700(a)
6 Ragsdale, 122 S.Ct. at 1164–65.
9 Although the Ragsdale court eliminated the only explicit penalty that employers faced for failing to notify individual employees that their leave counted as FMLA leave, employers should not interpret the decision as a permit to willfully ignore the notification provisions of the FMLA. The Ragsdale court clearly left open the possibility that an employee may be granted additional leave if the employee can demonstrate that as a result of the employer’s failure to provide notice, the employee suffered identifiable harm. Id. at 1162. For example, if the employee can demonstrate that she would not have taken leave had she known that the leave would count against her FMLA allotment, then the employee may be entitled to a full 12 weeks of additional FMLA leave. Alternatively, if the employee can prove that she would have taken only intermittent leave had she been notified of the designation, the employee may be entitled to any leave that would have remained had she been notified.
10 Gilman, 125 F. 3d. at 1434–36.
12 Wascura, 169 F.3d at 685–87.
15 Id.; both of these decisions have been criticized because they do not explain why public officials should be exempted from liability while managers in the private sector are not. See Morrow v. Putnam, 142 F.Supp.2d 1271, 1275 (D. Nev. 2001). The Eighth Circuit has held otherwise, finding that a public official may qualify as an “employer” under the FMLA, and thus may be held liable in his or her individual capacity. See Darby v Simon (2002, CA8) 2002 WL 535095. According to the Eighth Circuit, the FMLA does not distinguish between employers in the public and private sectors, so if an individual meets the definition in the FMLA of “employer,” then that person should be subject to individual liability under the act.
16 McGregor, 180 F.3d at 1307.
18 29 C.F.R. §825.208
19 McGregor, 180 F.3d at 1308.
20 Graham, 193 F. 3d at 1284.
22 O’Connor, 200 F.3d at 1354.
23 Cf. Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712–14 (7th Cir. 1997) (holding that if an employee proves by a preponderance of the evidence she is entitled to the benefit she claims and that her employer interfered with or denied that benefit, the employer violated the FMLA).
24 Earl, 207 F. 3d at 1361.
26 Id. at 1368.
27 Parris, 216 F. 3d at 1299.
29 Id. at 1302–03.
30 Brungart, 231 F.3d at 793–95.
34 29 C.F.R. §825.110(d).
35 Brungart, 231 F.3d at 795.
36 Id. at 797; see also Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579 (7th Cir. 2000) (same) and Evanoff v. Minneapolis Public Schools, No. 00-2479, 2001 WL 379017 (8th Cir. April 17, 2001) (same).
37 Brungart, 231 F.3d 791 at 797–800.
43 Cash, 231 F. 3d at 1307.
44 Id. at 1307–08.
45 Strickland, 239 F. 3d at 1201–02.
51 Wascura II, 257 F. 3d at 1240.
52 Id. at 1247–48.
56 Smith, 273 F. 3d at 1305.
58 Id. at 1308–13.
59 Morrison, 323 F. 3d at 921.
60 Proposed revisions to the Department of Labor regulations initially were expected by June 1, 2003. The Department of Labor, however, postponed the issuance of the proposed regulations until later this year.
61 See Wessel, Harry, FMLA Law May See Expansion Forty Percent of Workforce Does Not Have Coverage, Daily Press, April 7, 2003.
62 Senator Christopher Dodd of Connecticut has proposed legislation expanding the scope of the FMLA by lowering its coverage threshold from employers with 50 or more employees to those with 25 or more employees. The proposed Family and Medical Leave Expansion Act also would add to the permissible reasons for FMLA leave an employee’s need to address domestic violence and its effects, and provide parents with up to 24 hours leave in a 12-month period to participate in a child’s school activity. Senator Dodd’s bill also calls for pilot programs both in the states and within the federal government to experiment with ways to provide eligible employees six weeks of paid leave to care for a newborn or adopted child or to respond to family illness. The legislation includes state matching grants to support a pilot program and would allow states to replace wages directly or through a state unemployment compensation or temporary disability program.
63 In California, a new paid-leave law, which takes effect next year, allows up to six weeks of partly paid leave for workers to care for a newborn or a seriously ill family member.
No matter how big or small their company, private-sector workers in California will be covered by the Family Temporary Disability Insurance law. The program will be funded by workers, who will pay from $1 to $6 a month into a statewide fund. If they need time to care for a newborn or a seriously ill family member, workers will receive 55 percent of their pay—as long as it doesn’t exceed $728 a week—for up to six weeks. The closest Florida has come to such a law is a legislative proposal that would allow working parents to draw unemployment compensation for up to 12 weeks of leave when their child is born or adopted. See Wessel, Harry, FMLA Law May See Expansion Forty Percent of Workforce Does Not Have Coverage, Daily Press, April 7, 2003.
64 To mark the 10th anniversary of the signing of the FMLA, Senator Judd Gregg of New Hampshire, chair of the Senate Committee on Health, Education, Labor and Pensions, introduced legislation to allow private-sector employees covered by the Fair Labor Standards Act to take time off instead of overtime pay for hours over 40 in a week. Additionally, Representative Judy Biggert of Illinois, vice chair of the Workforce Protections Subcommittee of the House Committee on Education and the Workforce, initiated a bill that would clarify the FMLA definition of “serious medical condition” to specify long-term conditions such as heart attacks, strokes and spinal injuries. It would rule out minor ailments that the Department of Labor currently considers to be covered by the law. The proposal also would allow employers to require employees to take covered leave in at least half-day blocks instead of the shortest time period an employer’s payroll system could track.
Luis A. Cabassa is an associate with Thompson, Sizemore & Gonzalez, P.A., representing management in employment related disputes. Mr. Cabassa received his bachelor of science from Cornell University (1992) and his juris doctorate (1995, with honors) from the Florida State University College of Law.
This column is submitted on behalf of the Labor and Employment Law Section, Cathy J. Beveridge, chair, and Stuart A. Rosenfeldt, editor.