For employers that don’t document properly, the jury awaits


In yesterday’s post at The Employer Handbook, I discussed a recent federal-court decision to demonstrate why it is crucial for employers to document workplace performance and misconduct.

Today, after the jump, I have another federal-court decision — one in which an employer’s failure to properly paper an employee’s leave under the Family and Medical Leave Act, translates into big-time headaches.

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The case is Kinney v. Century Services Corporation II. Here are the basic facts of the Kinney case:

  • Ms. Kinney requested time off from work to treat for depression.
  • The employer approved Kinney’s leave request without providing Kinney any written notice of her rights and responsibilities under the FMLA.
  • Kinney began her FMLA leave.
  • Kinney returned to work the following week, but forgot to bring a return-to-work note from her doctor. So, Kinney’s employer refused to allow her to work and Kinney was forced to take a vacation day.
  • Kinney returned to work the next day.

Kinney later sued, claiming that her employer had interfered with her rights under the FMLA by failing to give her notice of her rights and responsibilities under the FMLA.

Kinney’s employer may have interfered with Kinney’s FMLA rights.

To establish an FMLA interference claim, a plaintiff must show, among other things, that her employer denied her of FMLA benefits to which she was entitled. The court outlined how an employer can interfere with an employee’s FMLA rights:

When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances.” … Employers are required to set forth, in writing, the specific expectations and obligations placed upon an employee and to explain the consequences of failing to meet these obligations each and every time the eligibility notice is provided. … “Failure to follow the notice requirements set forth in this section may constitute an interference with, restraint, or denial of the exercise of an employee’s FMLA rights.”

However, even if the employer technically violates the FMLA notice requirements, the employee must still show that she was prejudiced by the violation; i.e., she suffered actual harm.

Here, even though the paperwork snafu resulted in Kinney using a single vacation day, the court could “reasonably infer that Ms. Kinney’s ‘decision’ to use a paid vacation day was not much of a choice at all.” That is, she wanted to work on May 5. But, her employer refused. Consequently, she was forced to use a vacation day, which, technically, is more than a technical violation of the FMLA.

Two quick lessons for employers:

  1. Document workplace issues. This bears repeating from yesterday’s post. Document employee issues. It could be a formal write-up, a memo to the file, an email. Whatever. Just make sure it is contemporaneous and in writing.
  2. The FMLA is a regulatory minefield. Even the most experienced of us can screw this up. FMLA may be the one area of employment law that I would vaporize, if given the chance. But, alas. If you have questions, consult an attorney. Even better, consider having an employment-law attorney provide FMLA training.
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