Labor & Employment Law Daily Requiring notice to HR in addition to manager improperly imposed heightened FMLA leave notice burden
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Friday, June 7, 2019

Requiring notice to HR in addition to manager improperly imposed heightened FMLA leave notice burden

By Nicole D. Prysby, J.D.

The employee contacted her manager but did not contact HR, as the employer’s FMLA policy required. However, employees weren’t required to contact HR for any other type of leave, so the employer could not refuse FMLA leave on that basis.

A Burger King franchise unlawfully interfered with an employee’s FMLA rights when it denied her leave request to care for her hospitalized mother because she did not follow the company’s requirement that she contact human resources, in addition to her manager, to request leave. Because the employer does not require employees to contact HR for any absence other than FMLA leave, it could not properly deny an FMLA leave request for this reason, a federal court in Alabama concluded. In addition, the manager did not tell the employee to contact HR once he was told of the employee’s need for FMLA-qualifying leave, so the employer was partly to blame for her failure to do so. Therefore, the court granted the employee’s motion for summary judgment on her FMLA interference claim. Her interference claim arising from her termination days later survived the employer’s summary judgment motion, as did her FMLA retaliation claim (Moore v. GPS Hospitality Partners IV, LLC, June 3, 2019, Steele, W.).

Background. The employee told her manager that she needed a week of FMLA leave to care for her mother, who had a life-threatening serious health condition requiring immediate surgery. The manager told the employee to take all of the time she needed, but then demanded that she come in to work during the week (which the employee did, for part of a shift) and then fired her for tardiness and failing to show up for work during some days during the week. Throughout the week, the employee repeatedly told her managers that she needed leave. She alleged FMLA interference (for denial of leave and termination) and retaliation.

Successor employer. The employee had only been employed for two months, but was an eligible employee under the FMLA because the entity that previously employed her was purchased by the defendant, which retained all of the employees and transitioned them directly into employment with the defendant. The employer was therefore liable as a successor in interest.

FMLA interference. The employer argued that the employee failed to provide requisite notice of her need for FMLA leave. FMLA regulations require an employee to “comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” 29 CFR Section 825.302(d). The employee repeatedly contacted her restaurant manager and the district manager to request leave, but she did not contact HR, as required by the employer’s FMLA policy. The employer argued that her failure to do so rendered her leave request insufficient. The court rejected that argument, reviewing the FMLA regulations in detail, and holding that the relevant notice and procedural requirements are those governing leave generally, not FMLA leave specifically.

The regulations protect an employee from being denied FMLA leave based on a lack of understanding that the need for leave is potentially FMLA-qualifying. It would be nonsensical to grant such protection only to effectively negate it by requiring the employee to follow an explicitly FMLA-specific notice procedure—which she would do only if she understood that her leave could be FMLA-qualifying, the court reasoned.

The language of the regulations supports a reading that restricts the “usual and customary notice and procedural requirements for requesting leave” to those requirements applicable to leave generally and does not permit employers to deny leave based on a failure to comply with more stringent notice and procedural requirements applicable to FMLA requests but not to other forms of leave. Because the employer does not require an employee to contact HR for any absence other than FMLA, it could not properly refuse an employee’s FMLA leave request for failure to contact HR.

In addition, “unusual circumstances” justify the employee’s failure to comply with the employer’s usual and customary notice and procedural requirements for leave. The employee was not given sufficient time to review the employer’s handbook (employees were given only a few minutes to complete employment paperwork and review the handbook) and was unaware of the FMLA policy. The employer did not train managers on the FMLA policy. And it is the employer’s policy that if an employee makes an FMLA leave request to a manager, the manager is required to tell the employee to contact HR, which management in this case failed to do. Because the employer was partially to blame for the employee’s failure to contact HR, it was liable under the FMLA for interfering with her right to take leave.

The employee argued that she was terminated days after her leave request for infractions occurring while she was at work due to the improper denial of FMLA leave. As such, she argued, her termination also amounted to FMLA interference. But she provided no authority for that argument, and the court declined to decide the question on summary judgment. Termination can constitute interference when an employer discharges an employee while out on FMLA leave, but because the employee was denied FMLA leave, it is not clear whether her right to reinstatement was ever triggered, the court said, finding a fact question whether the employer was also liable for FMLA interference based on her discharge.

FMLA retaliation. The retaliation claim also survived the employer’s summary judgment motion. The employer contended that it fired the employee because one day during the week in question, the employee refused to work her assigned schedule, called her manager a “bitch,” and told her to “come get her store.” However, the temporal proximity of her termination to her leave request suggested pretext.

In addition, the manager admitted that the employee had called her “bitch” on one or two occasions in the recent past without the manager disciplining or even correcting her for doing so. For the manager to suddenly treat the employee’s language as a terminable offense after tolerating it and engaging in it herself undermined the employer’s stated reason for her discharge. Likewise, the employee had previously been late to work, but only during that final week, immediately after she invoked her FMLA rights, did her absences and tardiness become an issue. A reasonable jury could conclude that this new approach to discipline was prompted by her protected conduct and that her termination was similarly motivated. The employer also changed its position on the reasons for the termination, at first citing tardiness and absenteeism, then insubordination.

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