Shedding Light on FMLA

November 1, 2009

(article originally published in the New Hampshire Business Review, November 2009)

Melissa works as a Human Resource Manager for a growing high tech company which has just reached the FMLA threshold of 50 employees.  An employee who has just returned to work from maternity leave is seeking additional time off under the FMLA to care for her sick child.  The employee’s supervisor would like to reassign the employee to second shift because the intermittent leave being requested will be a great inconvenience to his department.  What concerns does Melissa need to address?

The Family and Medical Leave Act (“FMLA”) is a law that is often difficult for employers to practically apply to their business and employees.  It is important for employers to take the time to understand this law.  Melissa needs to focus on how to calculate the employee’s remaining leave in light of her maternity leave and how to administer intermittent leave.  She also needs to be concerned about supervisors taking adverse action against an employee requesting leave, especially in light of a recent decision broadening the FMLA’s application. 

The Third Circuit decision of Erdman v. Nationwide Insurance Company, No. 07-3796 (3d Cir. September 23, 2009) offers two good lessons to employers.  First, employers need to have an explicit policy as to whether or not employees may work hours above and beyond that dictated by their position.  Second, employees are entitled to the FMLA’s protections at the time they invoke their rights under the law, not at the time they actually take the leave.

Brenda Erdman was hired to work a full-time position at Nationwide in 1980, and remained a full-time employee until 1998 when her daughter was born with Down’s Syndrome.  At that time, she asked to work part-time.  During this time, she was allowed to report extra hours that she worked as “comp” time.  Later, her supervisor told her that she should only report those hours that she was “supposed to” be reporting.  Soon after, her supervisor changed, and she sent her new supervisor an email clarifying whether or not she was able to report comp time.  This email went unanswered.  However, Erdman and the supervisor soon had a meeting regarding a discrepancy in Erdman’s vacation time and Erdman explained that she had used comp time in lieu of vacation time.  This went unchallenged.  A week later, Erdman received an email from the supervisor admonishing Erdman because her overtime was not approved.  Two weeks later, in February 2003, Erdman was informed that she could no longer use comp time.  This was the first time she was told not to work comp time. 

Soon after, Erdman’s part-time position was eliminated and she was offered a full-time position with the company.  Despite being unhappy with this change, she accepted.  At the time she accepted the position, Erdman asked Nationwide if her earlier request for vacation time for the month of August would be honored.  She was informed that she could not use her vacation time because of the high number of Nationwide employees seeking vacation time during that month.  Erdman informed Nationwide that she was requesting the time off in August to care for her daughter and prepare her for the upcoming school year, and further informed them that if her vacation was denied, she would request FMLA leave.  In April 2003, Erdman submitted FMLA paperwork.

On May 9, 2003, Erdman was fired.  Nationwide cited behavioral problems as the reason for her termination, in part due to her response to being unhappy with the change in her position from part-time to full-time.  Erdman subsequently filed suit against Nationwide for violation of the FMLA. 

The Court first addressed the issue of whether or not Erdman was eligible for the FMLA’s protection.  Under the FMLA, an employee must have worked 1,250 hours during last 12 months in order to have FMLA eligibility.  Erdman and Nationwide disputed the number of hours that she had worked.  An employee must have knowledge, or constructive knowledge, of the hours worked.  Because Erdman’s supervisors had constructive knowledge that she was working hours at home above and beyond that of her position, the Court accepted Erdman’s calculations.  Further, even though Erdman’s supervisor informed her to stop working overtime, she did not address the issue of comp time.  The Court found that Nationwide had constructive notice of her comp time up until the point when it specifically informed her to stop working comp time. 

The Court next addressed whether Erdman was protected by the FMLA because she had yet to actually take the leave, and it came to the emphatic conclusion that she was protected.  The Court specifically noted that it would be “patently absurd” to allow an employer to escape its responsibilities under the FMLA simply by firing an employee before he or she was actually able to take the leave.  After discussing what it means to “take” FMLA leave, the Court stated “we interpret the requirement than an employer ‘take’ FMLA leave to connote invocation of FMLA rights, not actual commencement of leave.”  Such an action may constitute both interference with FMLA rights and retaliation for taking FMLA leave.

Employers should have a firm policy for overtime and comp hours to avoid liability for an employee who might otherwise not be protected under the FMLA.  Where, as here, a supervisor knows an employee is working hours that are not otherwise authorized, the employer may be found to have constructive knowledge that the employee was working hours above and beyond what the employer intends.  Supervisors should therefore be trained in the employer’s policies and must understand the ramifications of allowing employees to violate the policies.

Employers must also be careful about who they consider to be FMLA eligible.  As soon as an otherwise eligible employee submits his or her FMLA request to the employer, the employee has invoked his or her FMLA rights and is afforded the protections of the statute.  If an employer interferes with those rights or retaliates due to the invocation of those rights, even if the employee has yet to take the leave, it may be found to have violated the FMLA and will be held responsible for paying damages to the employee.

The FMLA is a complicated statute with many associated regulations and court decisions, and employers must be careful in navigating its application.  Understanding its broad application is but one part in understanding the protections it affords to eligible employees. 

Katie Kiernan  is an attorney in the  Litigation Department at the law firm of McLane, Graf, Raulerson & Middleton, Professional Association.   Katie can be reached at 603-628-1490 or at The McLane Law Firm is the largest full-service law firm in the state of New Hampshire, with offices in Concord, Manchester and Portsmouth, as well as Woburn, Massachusetts.