Brian J. Graber, Ltd., is an FMLA lawyer representing employees in FMLA interference and retaliation claims for exercising their rights to FMLA leave benefits. The Family Medical Leave Act of 1993, (FMLA), 29 U.S.C. §2601, et seq., entitles “eligible” employees of “covered” employers to take unpaid, job-protected leave for family and medical reasons specified by the statute for twelve workweeks in a 12-month period or twenty-six workweeks during a 12 month period for military care giver leave. The FMLA, 29 U.S.C.§2615 provides employees with a cause of action against their employers who interfere, restrain, or deny their rights to FMLA leave or restoration to the same or equivalent position.
BENEFITS PROVIDED BY THE FMLA TO “ELIGIBLE” EMPLOYEES
The FMLA, 29 U.S.C. §2611(2)(A)(i)-(ii), defines an “eligible employee” as an employee who has been employed for at least 12 months and who has worked at least 1,250 hours during the previous 12 month period with the employer from whom leave is requested. The FMLA, 29 U.S.C. §2611(2)(B)(ii) requires the employee to work at a location where the employer has at least 50 employees within 75 miles.
The FMLA only applies to “covered” employers. Under the FMLA “covered” employers are considered any of the following:
- Private sector employer with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
- Public agency, including a local, state, or federal government agency, regardless of the number of employees it employs; or
- Public or private elementary or secondary school, regardless of the number of employees it employs.
The FMLA, 29 U.S.C. §2612(a)(1) allows “eligible” employees of “covered” employers to take a total of 12 months of leave during any 12-month period for one or more of the following:
- The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care;
- To care for a spouse, son, daughter, or parent who has a serious health condition;
- For a serious health condition that makes the employee unable to perform the essential functions of his or her job; or
- For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.
Under the FMLA, 29 U.S.C. §2612(a)(2) an eligible employee may also take up to 26 weeks of leave during a single twelve month period to care for a covered service member with a serious injury or illness, when the employee is the spouse, son, daughter, parent, or next of kin to the service member.
Under certain circumstances, “eligible” employees may take FMLA on an intermittent basis.
The FMLA, 29 U.S.C. §2611(11) defines “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice, or residential medical facility; or continuing treatment by a healthcare provider.
The FMLA, 29 U.S.C. §2612(e) does require the employee to give his or her employer reasonable notice of the need for leave. Generally, the employee must give the employer at least 30 days notice before taking FMLA leave. If that is not possible, the employee must give the employer notice as soon as both possible and practical, taking into account all of the facts and circumstances. The employee must give the employer at least verbal notice sufficient to make the employer aware that he or she needed FMLA leave. The employee does not need to mention FMLA or use any specific words if he or she gave the employer enough information that the employer knew, or should have known, that the employee needed FMLA leave.
In certain circumstances theFMLA, 29 U.S.C. §2613(a) allows an employer to require a request for leave be supported by a certification issued by a health care provider and the employee is required to provide the certification to the employer in a timely manner. The U.S. Department of Labor’s Wage and Hour Division is the federal agency administering the FMLA. More detailed information and copies of sample FMLA Forms can be found here https://www.dol.gov/agencies/whd/fmla/forms
EMPLOYEE’S RIGHT TO BE RESTORED TO THE SAME OR EQUIVALENT POSITION
The FMLA, 29 U.S.C. §2614(a)(1) requires employer to restore employees who take FMLA leave to his or her same job position held before they took FMLA leave or to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. De minimus, intangible changes in an employee’s position do not violate the FMLA. See Smith v. East Baton Rouge Parish School Bd., 453 F.3d 650, 651 (5th Cir. 2006).
However, an employee’s right to be restored to the same or equivalent position is not absolute. There are exceptions for key employees under 29 U.S.C. §2614(b)(1)(A)-(B). An employee is not entitled to be returned his or her prior position if he or she would have been demoted or terminated regardless of whether he or she took FMLA leave. See Simpson v. Office of Chief Judge of Circuit Court of Will Cty., 559 F.3d 706, 712 (7th Cir. 2009). An FMLA leave interference or retaliation claim for failure to return to the same or equivalent position requires a detailed legal analysis from an experience employment attorney.
FMLA LEAVE INTERFERENCE CLAIMS
FMLA, 29 U.S.C. §2615(a)(1) makes it unlawful for any employer to interfere with, restrain, or deny the exercise or attempt to exercised any right provided by the FMLA. An employee claiming FMLA Interference must prove the following elements:
- The employee is a an “eligible” for FMLA benefits as described above;
- The employer is a “covered” employer as described-above;
- The employee is entitled to take FMLA leave as described above;
- The employer had proper notice of the employee’s need for leave; and
- The employer interfered with the employee’s right to take FMLA leave.
Common ways an employer interferes with FMLA rights include but are not limited to the following:
- Refusing to grant the employee FMLA leave;
- Terminating the employee;
- Refusing to return the employee to his or her job or to an equivalent position;
- Discouraging an employee from taking FMLA leave;
Each and every case is different and each case requires detailed legal analysis from an experienced employment attorney. There are likely to be other factors that an employer likely claims during the litigation process that will require further detailed legal analysis.
FMLA RETALIATION CLAIMS
FMLA, 29 U.S.C. §2615(a)(2) makes it unlawful for any employer to discharge or in any other way discriminate against an individual for opposing any practice made unlawful under the FMLA. FMLA, 29 U.S.C. §2615(b) makes it unlawful for any person to discharge or in any manner discriminate against any individual because the individual:
- Has filed a charge, or has instituted or caused to be instituted any proceeding, under or related to FMLA;
- Has given or is about to give, any information in connection with any inquiry or proceeding relating to any right provided by the FMLA; or
- Has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under the FMLA.
In order to establish an FMLA Retaliation claim, an employee must prove the following:
- That he or she engaged in FMLA-protected activity;
- That he or she suffered adverse employment action taken by the employer; and
- That the FMLA-protected activity was a motivating factor in the employer’s decision to take the adverse employment action against the employee.
Each and every case is different and each case requires detailed legal analysis by an experienced employment lawyer. Further legal analysis will be necessary to determine whether or not the employer has a legitimate non-pretextual reason for taking the alleged adverse employment action against the employee.
STATUTE OF LIMITATIONS
Under the FMLA, 29 U.S.C. §2617(c)(1) an employee has two years after the date of the last event constituting the alleged violation for which the action is brought to file an FMLA leave interference or retaliation claim. Failure to timely file a lawsuit within the timeframe required by 29 U.S.C. §2617(c)(1) could prevent any recovery against the employer for FMLA Interference or Discrimination/Retaliation. The FMLA, 29 U.S.C. §2617(c)(2) can increase the timeframe for filing an FMLA claim against an employer to 3 years of the date of the last event constituting the alleged violation if there is proof of a willful violation of §1615.
If you believe that you have a claim against your employer for FMLA leave interference or retaliation under 29 U.S.C. §2615, contact Brian J. Graber, Ltd., a Chicago FMLA lawyer at (312) 291-4648 for a free consultation.