Here’s how an employer violated the FMLA and still won the interference claim


The complexities of the Family and Medical Leave Act can bollocks even multi-billion-dollar companies. But the case I’m going to tell you about today is a reminder that, at bottom, the FMLA is largely no-harm, non-foul.

In early 2018, an employee with a serious health condition spoke to her doctor, who encouraged her to take FMLA leave on a reduced schedule. So, the employee applied for FMLA through her employer’s third-party administrator to work no more than 40 hours per week (8 hours per day).

Two days later, the TPA approved the FMLA request and communicated this to the company. However, the company responded, “We do not make accommodations for reduced schedules. Please advise.”

After some back and forth, the TPA clarified that the FMLA covered the leave, and the company resolved the issue. However, in the interim, the employee worked two ten-hour days — four hours that should have been FMLA leave.

So, the employee claimed FMLA interference.

And the court agreed. Even though the company argued that the mistake was minor, the court concluded that “even a slight delay can be an FMLA violation if there is prejudice to the employee.”

Oh, but wait a minute. Was there any prejudice to the employee?

Even where a plaintiff shows a technical FMLA violation, a claim for interference will fail unless the employee also shows that the employer’s interference prejudiced the employee as the result of an actual, remediable impairment of her rights under the FMLA.

In plain English, she had to suffer some harm.

Here, the court concluded that the plaintiff was “out of luck.”

She has produced no evidence of actual harm to her for the four hours she worked that should have been credited as FMLA leave. She was not docked FMLA hours during this time (because she worked them), she has made no assertion that her condition worsened due to those four hours, nor has she asserted any other harm that resulted from these few hours she worked. 

No harm, no foul, the defendant wins.

I’m not sure that I would add this to my arsenal of employer “FMLA hacks and cheat codes,” but if you’re interested in picking up some tips and tricks to easy leave administration, join me and some fabulous guests this Friday at Noon ET for the next edition of The Employer Handbook Zoom Office Happy Hour. It’s free.

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