Keep your insensitive FMLA comments to yourself. You too, HR.

fmla

I’ve heard the Family and Medical Leave Act referred to as the “Friday/Monday Leave Act.” Heck, I called it the Friday/Monday Leave Act last week. Turns out, I need to watch what I say.

A “get out of jail free card.”

In Deka v. Countrywide Association For People with Disabilities, Inc. (opinion here), a few of the defendant’s highest ranking officials; namely, its Executive Director, CFO, and Human Resources Administrator, allegedly had a fairly cavalier attitude towards the FMLA. That is, according to the plaintiff, a woman with multiple sclerosis, each of these individuals referred to the FMLA as a “get out of jail free card.”

To the employer’s credit, when the plaintiff applied for FMLA, the leave was granted. Specifically, the plaintiff applied to take intermittent FMLA at some point in the future, as needed. And the employer approved this. However, before the plaintiff used any intermittent leave for her multiple sclerosis, she was fired.

She then filed a complaint alleging, among other things, FMLA violations.

But, not getting out of this FMLA lawsuit.

Now, here’s the thing. Ordinarily, the statute of limitations for an FMLA claim is two years. However, in situations where the employer’s FMLA violation is willful (i.e., it knowingly violated the statute), an employee would have three years in which to file a lawsuit. That was important here, because the plaintiff sued outside of two years but within three years from her termination date. And based on the facts alleged in her complaint, the court concluded that the plaintiff had pled a willful violation of the statute:

Deka heard [Human Resources Administrator] Black refer to the FMLA as “a get out of jail free card” at a Directors’ Meeting….On March 7, 2012, after Countryside approved Deka’s FMLA request for intermittent leave, Deka again heard Black refer to FMLA leave as “a get out of jail free card.” She also witnessed Countryside’s directors discuss the cost-effectiveness of only covering three to five seriously ill employees. Finally, on March 30, 2012, Deka saw Black again refer to the FMLA as “a get out of jail free card” while looking at her and laughing during a managers’ meeting reviewing FMLA leave. Later that afternoon, Kulick, Reicheneker, and Black informed Deka that they were terminating her employment, effective immediately.

So, a couple of stupid, snarky comments, plus a discussion of the financial impact of the leave was enough, if true, to demonstrate that the employer may have wilfully violated the FMLA.

What can employers learn from this?

Remind your decisionmakers and anyone else in a decision to approve FMLA — especially, folks in HR — not to joke around or make insensitive comments about FMLA. That goes for the lawyers too.

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