Employer Policy Critical to Defense Against FMLA Liability

April 8, 2016

By Nichole D. Atallah
Practice Area: Labor & Employment Law

A well-crafted employer policy, and whether it was followed, is often just as important to the outcome of a dispute with an employee as the law itself. This is why attorneys constantly trumpet the need to update policies regularly and abide by them. There is no better example of this than a case recently decided by United States District Court for the Southern District of New York.

In Graziadio v. Culinary Institute of America, et al., No. 13-cv-1082 (NSR) (S.D.N.Y March 20, 2016), the plaintiff brought a claim for interference and retaliation under the Family and Medical Leave Act (“FMLA”). The plaintiff first requested and received FMLA leave because of a work-related injury. Approximately four months later, she requested FMLA leave to care for her son who had been hospitalized for a disability related illness.

The employer sent her an FMLA designation notice, a notice of eligibility, and a medical certification form. The notice stated that, upon request, the employee would have to provide certification to support her need for FMLA leave. The employer’s FMLA policy was consistent with this requirement. The plaintiff returned an FMLA certification supporting the reason for her leave and indicating she would also need intermittent leave to care for her son, and estimated the term as “7 days a week from now through lifetime.”

Soon thereafter, the plaintiff’s other son broke his leg and she told her employer that she would be out for the remainder of the week. When the plaintiff did not return to work the next week, the employer, suspicious about the reason she had been absent so long, emailed her. One week later, the employer sent the plaintiff a letter which took issue with the prior FMLA documentation provided for her first son’s illness and with the more recent leave for her second son. The employer requested supplemental documentation and explained that documentation was not sufficient to address the reasons for her leave.

The plaintiff sent an email stating that she would return to work under a modified schedule of three days a week. After some confusion over the employer’s requirements and failure to receive sufficient documentation, the employer suggested an in-person meeting, to which plaintiff did not reply. The plaintiff was also told to contact her supervisor to arrange her return to work, which she did not do. The employer then terminated her for failure to return to work.

The plaintiff claimed that the employer improperly interfered with her FMLA leave and terminated her in retaliation for taking FMLA leave. Although the employer could have been better about paying closer attention to documentation earlier in the process, the court carefully considered the employer’s employee handbook and FMLA policy confirming that employer could request medical certification, which served as a “standing request for certification,” and that the policy provided a time limitation following return to provide the documentation. The court also took into consideration the employer’s attempts to clarify the information needed when the initial certification was not clear.

The court found no evidence of interference or retaliation where the employer’s policies indicated the leave was properly designated as unauthorized, the employer was within its right to continue to designate the employee’s absence as unauthorized for lack of documentation, and the employee failed to contact her supervisor to return to work. All of these factors indicated that the employer had a legitimate reason for termination.

This case is just one example of why well-written, legally enforceable policies are critical in defending against claims by employees, especially when the dispute involves confusing areas of the law like FMLA or the Americans with Disabilities Act. Well before litigation becomes an issue, employer policies help guide decision makers and employees to resolution of conflicts because the employer can point to a policy that puts an employee on notice of company requirements. It is equally important that employers encourage their management staff to consistently reference and follow these policies, and to update them as needed.

Following are some recent developments to keep in mind: 

  1. Department of Labor regulations addressing new thresholds for exemptions to overtime requirements under the Fair Labor Standards Act are closer to being released. The Department of Labor sent its final draft of the final rules to the Office of Management and Budget for review.
     
  2. The Department of Labor issued a new “union persuader rule” which will require employers to report when it hires third parties to assist in crafting anti-union campaign messages. The new rule interprets Section 203 of the Labor Management Reporting and Disclosure Act, requiring employers to file reports and disclose expenditures on labor-management activities.

    However, the law did not require disclosure if employers hire consultants to create materials, strategies and policies for organizing campaigns, as long as the consultant does not directly contact employees.

    The new rule requires reporting on “actions, conduct or communications that are undertaken with an object, explicitly or implicitly, directly or indirectly, to affect an employee’s decisions regarding his or her representation or collective bargaining rights.” The Federal Register published the new rule on March 24. The change will be applicable to arrangements, agreements, and payments made on or after July 1, 2016. 
     
  3. New York State and California are poised to raise their minimum wage rates to $15 per hour in the coming years. New York will also become the first state to provide 12 weeks of paid family and medical leave under a bill expected to be signed by the governor. 

About the author: Nichole Atallah is an associate with PilieroMazza in the Labor and Employment Group. She may be reached at natallah@pilieromazza.com.

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