34 MARCH / APRIL 2020 HUMAN RESOURCES Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. The Family and Medical Leave Act entitles eligible employees of covered employers to take unpaid, job-protected leave for certain specified family and medical reasons. The FMLA provides two kinds of causes of action against employers: retaliation/discrimination and interference. Employers are prohibited from terminating or discriminating against an employee for “opposing any practice made unlawful” by the FMLA (retaliation/ discrimination) and from interfering with, restraining or denying the exercise or attempted exercise of any right provided by the FMLA (interference).* Unlike retaliation/discrimination cases where an employer’s motive is relevant in determining whether the employer is liable, intent is not material in assessing liability in an interference case. Thus, even good-faith mistakes can result in an interference claim. Those mistakes can prove costly. An employee who brings an FMLA claim can seek to recover back pay (lost wages), front pay (lost future wages), attorneys’ fees, and liquidated damages (unless the employer can show it acted in good faith). One way an employer can interfere with an employee’s FMLA rights is to request the employee to work while on leave. While the FMLA does not create an absolute right to be left alone while on leave, there is no hard and fast rule or concrete answer for when an employer’s contact with an employee violates the FMLA. This is why some employers opt for a strict policy of no working while on FMLA leave or “no contact” with an employee who is on leave. [Note: It is irrelevant whether the FMLA leave is paid. An employer can still “interfere” with an employee who is on paid FMLA leave.] FMLA Interference When does an employer cross the line? Generally speaking, if work during leave is more than minimal and occasional, it likely rises to the level of interference. For example, requesting substantive work, new work product or being “on call” would likely constitute interference. Responding to occasional, brief emails or phone calls that are limited in nature and not disruptive – such as finishing up an open item, providing a computer password, or passing on institutional or background knowledge – is likely not interference. In Hall v. Board of Education of the City of Chicago, an Illinois federal district court found that an employer may have interfered with a teacher’s FMLA rights when the employer asked the teacher to provide lesson plans and post grades while she was on FMLA leave. Contrast that with Daugherty v. Wabash Ctr., Inc., in which the Seventh Circuit Court of Appeals found that requesting keys and passwords so the employer could continue its operations was not interference, and Reagan v. Centre Lifelink Emergency Medical Serv., Inc., in which the Third Circuit Court of Appeals found that a one-time discrete inquiry to an employee on FMLA leave, asking the employee for explanations regarding certain actions, did not amount to interference. Other examples of FMLA interference include: • Refusing to authorize legitimate FMLA leave requests; • Discouraging FMLA leave, e.g. comments by a supervisor that the employee should not take time off because the employer is short-staffed; • Applying an employee’s FMLA usage as a negative factor in performance evaluations or in employment decisions such as promotions or disciplinary actions; • Considering an employee’s prior FMLA leave in determining work restrictions;
RkJQdWJsaXNoZXIy MTg3NDExNQ==