Family and Medical Leave Act gains courts' attention

Bob Lawson Jr. practices labor and employment law representing management and is a partner with the law firm of Blackwell Sanders Peper Martin LLP in Springfield.

This year, the U.S. Supreme Court issued several employment law decisions favorable to employers. Most of these decisions concerned the Americans Disabilities Act. The court addressed, though, for the first time, an issue under the Family and Medical Leave Act.

In Ragsdale vs. Wolverine Worldwide Inc., the Supreme Court invalidated a regulation penalizing employers for failing to designate an employee's leave as family medical leave. The regulation allowed employees to retain 12 weeks of FMLA leave if an employer failed to designate leave from work which would otherwise count as FMLA leave.

In that case, the employee, Ragsdale, had been absent from work for seven months pursuant to the employer's short-term disability policy. At the conclusion of the disability leave, the employee was unable to return to work and requested more leave. Her employer denied her request and terminated her employment. Ragsdale sued, claiming she was entitled to 12 additional weeks of leave under the FMLA since her employer failed to notify her that part of the disability leave was designated as FMLA leave.

In a 5-4 decision, the court disagreed with the employee's position. It stated, in effect, that the employee's claim improperly provided more leave than required by the FMLA and such a holding violates the true intent of the FMLA.

Although the Supreme Court has decided only one case involving FMLA since the statute was enacted in 1993, the federal circuit courts have recently addressed other FMLA matters, including the Eighth Circuit Court of Appeals.

On Sept. 11, the Eighth Circuit analyzed an FMLA retaliation case in Smith vs. Allen Health Systems Inc. Specifically, the court considered whether an adverse employment action in close proximity to an employee's leave would be sufficient, in and of itself, to constitute a submissible case of retaliation.

In this case, the employee's job consisted of processing donations received by the hospital's foundation. She also was required to forward receipts to donors. The hospital had counseled her several times in November and December about her failure to timely process donations. In the following month (January), the employee took family leave to travel to a foreign country to adopt a child.

While the employee was away, her employer found more evidence that the employee failed to do her job the two prior months. The employer discovered more than $350,000 worth of receipts that had not been forwarded to the donors, causing tax issues for some of these donors. Immediately upon her return from leave, the employee was fired.

Smith sued claiming she was fired for taking family leave. The employer denied the accusation, stating she was fired solely because of her poor job performance. The trial court agreed with the employer's position and entered summary judgment in its favor. The employee appealed, claiming the close proximity in time between her taking leave and discharge was enough evidence to allow her to present her case to a jury. The Eighth Circuit disagreed.

Of interest in this case, the circuit court outlined what is required for FMLA retaliation. First, the employee must show, that there was a causal connection between the employee's exercise of FMLA rights and the adverse employment action.

To do this, the employee must show more than just that the protected activity and the adverse action were extremely close in time, especially if the employer comes forward with evidence of a non-discriminatory reason for the adverse employment action. If the employer presents such evidence, it is up to the employee to come forward with evidence to show the employer's reason is unworthy of credence.

In this regard, the court's decision outlined a few examples, in addition to the temporal proximity between the employee's leave and discharge, an employee may need to present to rebut the employer's reasons. These include:

The employee received recent favorable performance review or evaluations;

The employer handed out more lenient treatment to similarly situated employees;

Changes over time in the employer's stated reasons for the adverse employment action; or

Internal documents within the employer's records which conflict with the employer's proffered reasons for its actions.

The application of the FMLA continues to cause employers problems. Therefore, expect to see more decisions in the near future to, it is hoped, guide employees and employers on the FMLA.