By Ronald Miller, J.D.
Although certain employers with fewer than 50 employees may qualify for an exemption from the requirement to provide FFCRA leave to employees, this was not a blanket exemption that automatically applied to all small employers.
A residential and commercial cleaner who claimed she was terminated by her cleaning services employer after requesting paid leave under the Families First Coronavirus Response Act (FFCRA) can advance her FLSA and FFCRA retaliation claims, a federal court in Florida ruled, denying her employer’s motion to dismiss. Under the FFCRA, an employer who discharges, disciplines, or discriminates against an employee is considered to have violated section 15(a)(3) of the FLSA. Further, in order to qualify for the small business exemption from the FFCRA, an officer of the employer must make determinations that the employee’s absence will have a detrimental impact on the financial or operational capabilities of the business for the exemption to apply (Kofler v. Sayde Steeves Cleaning Services, Inc., August 25, 2020, Covington, V.).
Leave request. After being hired in February 2020, the employee asked to take two weeks of unpaid leave in mid-April “to help care for her newborn grandchild.” In March 2020, the employee’s “two minor children were affected by school closures due to COVID-19 and as a result were required to stay home with [Kofler].” On April 1, the employee informed the employer that her two minor children were at home due to COVID-19 related school closures, and she requested paid leave in accordance to the FFCRA. The employer failed to respond to the employee’s request in regard to her FFCRA benefits.
On April 8, the employer terminated the employee’s employment, stating that she would be eligible for rehire in six months. In response, the employee filed suit asserting retaliation claims under the FLSA and the FFCRA. The employer filed a motion to dismiss.
FLSA retaliation. In asserting her FLSA retaliation claim, the employee argued that the employer fired her because she requested FFCRA leave. To state a claim for FLSA retaliation, a plaintiff must allege that: “(1) she engaged in a statutorily protected activity; (2) she subsequently suffered adverse action by the employer; and (3) a causal connection existed between the employee’s activity and the adverse action.”
Although the FLSA and FFCRA are different statutes, retaliation for asserting rights under the FFCRA violates the FLSA. The FFCRA prohibits employers “from discharging, disciplining, or discriminating against any Employee because such Employee took Paid Sick Leave under the [Emergency Paid Sick Leave Act (EPLSA)],” which is a part of the FFCRA, or “because such Employee has filed any complaint or instituted or caused to be instituted any proceeding . . . under or related to the EPLSA.”
Under the FFCRA, an employer who discharges, disciplines, or discriminates against an employee in the manner described in subsection (a) is considered to have violated section 15(a)(3) of the FLSA. Thus, retaliation claims regarding the FFCRA may be brought under the FLSA. Here, the employee plausibly alleged that she engaged in protected activity under the FLSA by requesting FFCRA leave. Moreover, the alleged temporal proximity between the employee’s leave request and termination—seven days—was sufficient to state a claim for retaliation.
FFCRA retaliation. Additionally, the employee alleged that the employer retaliated against her by firing her for requesting paid leave under the FFCRA. Accepting the complaint allegations as true, the court rejected the employer’s argument that the employee was no longer an employee at the time she requested leave under the FFCRA. The court declined to dismiss this claim based on the employer’s representations about the employee quitting her job before requesting leave.
Small employer exemption. The court also rejected the employer’s contention that the employee’s claim failed because it would qualify for the FFCRA exemption for certain small employers. As an employer with fewer than 50 employees, it argued that it was not a covered employer and would be within its rights to deny the employee’s request due to the risk to the financial health of the company that would have occurred had leave been provided.
However, the court pointed out, while it was true that certain employers with fewer than 50 employees may qualify for an exemption from the requirement to provide FFCRA leave to employees, 29 C.F.R. § 826.40(b)(1), this was not a blanket exemption that automatically applied to all small employers. Rather, an authorized officer of the employer must make certain determinations for the exemption to apply.
Specifically, the officer has to determine that the requested leave will result in expenses and financial obligations exceeding available revenues and cause it to cease operating; the absence of the employee would entail a substantial risk to the financial health or operational capabilities of the business because of specialized skills, knowledge of the business or responsibilities; or there were not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed to perform the labor or services provided by the employee on leave, and these labor or services are needed for the business to operate at minimal capacity, 29 C.F.R. § 826.40(b)(1)(i) – (iii).
Because it was not apparent on the face of the complaint that the FFCRA exemption applied to the employer, the court declined to dismiss the FFCRA retaliation claim on this basis.
Accordingly, the court denied the employer’s motion to dismiss.
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