Chapter § 1-49 29 CFR § 825.220. Protection for Employees Who Request Leave or Otherwise Assert FMLA Rights

• Jurisdiction: United States

1-49 29 CFR § 825.220. Protection for Employees Who Request Leave or Otherwise Assert FMLA Rights

(a) The FMLA prohibits interference with an employee's rights under the law, and with legal proceedings or inquiries relating to an employee's rights. More specifically, the law contains the following employee protections:

(1) An employer is prohibited from interfering with, restraining, or denying the exercise of (or attempts to exercise) any rights provided by the Act.
(2) An employer is prohibited from discharging or in any other way discriminating against any person (whether or not an employee) for opposing or complaining about any unlawful practice under the Act.
(3) All persons (whether or not employers) are prohibited from discharging or in any other way discriminating against any person (whether or not an employee) because that person has—

(i) Filed any charge, or has instituted (or caused to be instituted) any proceeding under or related to this Act;
(ii) Given, or is about to give, any information in connection with an inquiry or proceeding relating to a right under this Act;
(iii) Testified, or is about to testify, in any inquiry or proceeding relating to a right under this Act.

(b) Any violations of the Act or of these regulations constitute interfering with, restraining, or denying the exercise of rights provided by the Act. An employer may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered (See § 825.400(c)). "Interfering with" the exercise of an employee's rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave. It would also include manipulation by a covered employer to avoid responsibilities under FMLA, for example:

(1) Transferring employees from one worksite to another for the purpose of reducing worksites, or to keep worksites, below the 50-employee threshold for employee eligibility under the Act;

(2) Changing the essential functions of the job in order to preclude the taking of leave;

(3) Reducing hours available to work in order to avoid employee eligibility.

(c) The Act's prohibition against "interference" prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies. See § 825.215.

(d) Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA. For example, employees (or their collective bargaining representatives) cannot "trade off" the right to take FMLA leave against some other benefit offered by the employer. This does not prevent the settlement or release of FMLA claims by employees based on past employer conduct without the approval of the Department of Labor or a court. Nor does it prevent an employee's voluntary and uncoerced acceptance (not as a condition of employment) of a "light duty" assignment while recovering from a serious health condition (See § 825.702(d)). An employee's acceptance of such "light duty" assignment does not constitute a waiver of the employee's prospective rights, including the right to be restored to the same position the employee held at the time the employee's FMLA leave commenced or to an equivalent position. The employee's right to restoration, however, ceases at the end of the applicable 12-month FMLA leave year.

(e) Individuals, and not merely employees, are protected from retaliation for opposing (e.g., filing a complaint about) any practice which is unlawful under the Act. They are similarly protected if they oppose any practice which they reasonably believe to be a violation of the Act or regulations.

Overview

This regulation is at the heart of the regulations. Protections for those who seek FMLA leave are crucial to the ability of an employee to exercise FMLA rights. These protections come in two flavors: interference claims and retaliation claims. And interference claims come in two flavors as well: a failure to provide the required notices results in a claim when it leads to a failure to restore an employee to employment upon the completion of leave. And second, taking steps to discourage an employee from remaining on leave is a claim as well, but only if the employee returns early from leave because of pressure. The mere fact that an employer calls and asks the whereabouts of a file does not make for an interference claim. While it is correct that an employer's intent does not matter in pleading an interference claim, an employer must always plead, as an affirmative defense to such a claim, that whatever action it took was unrelated to the taking of FMLA leave.

Now, retaliation claims. There is substantial case law that summary judgment for an employer is appropriate if it has a "good faith" belief that the employee engaged in misconduct. It often pops up when an employee is on leave and engages in activities inconsistent with the reasons for leave or when misconduct or poor performance is discovered when the employee is on leave. While this "good faith" theory sounds like a new theory, it is simply a theory by a different name adopted by the Fifth Circuit; namely, that a court is not to second-guess the business judgments of an employer and act as a super-personnel department. Finally, as we discuss in this section, case law is evolving to the effect that a factor in determining whether summary judgment is appropriate is the absence of animus, such as no comments being made to the employee requesting leave, the routine processing of FMLA paperwork, and appropriate actions taken in response to a leave request.

True, courts often conflate claims for interference with claims for retaliation. An excellent opinion, Downs v. Winchester Med. Ctr., 21 F. Supp. 3d 615 (W.D. Va. 2014), deals head on with this issue, holding that denial of FMLA benefits are properly characterized as an interference claim and that the taking of FMLA leave as a negative factor in employment actions, such as hiring, firing, discipline are properly characterized as a retaliation claim. Thus, defendants should file Rule 12(b)(6) motions where the plaintiff conflates the claims.

This was done in one Texas case:

• Kendall v. Walgreen Co., No. A-12-CV-847-AWA, 2014 WL 1513960 (W.D. Tex. Apr. 16, 2014) (applying Cuellar v. KeppelAmfels, L.L.C., 731 F.3d 342 (5th Cir. 2013) and relying upon Judge Elrod's concurrence, court grants summary judgment on interference claim because it is duplicative of her retaliation claim, using Judge Elrod's reasoning that courts should look to substance of plaintiff's claims to determine whether it arises from deprivation of an FMLA entitlement (interference) or from punishment exacted for the plaintiff's exercise of an FMLA right (retaliation); court further declines to depart from Richardson v. Medtronics Int'l, 434 F.3d 327 (5th Cir. 2005), applying McDonnell Douglas v Green, 411 U.S. 792 (1973) to FMLA claims and rejecting defendant's argument that the court analyze the motion for summary judgment under a "but for" standard adopted for Title VII cases in University of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013)).

The Fifth Circuit has thus far declined to address the Nassar issue as well.

• Silva v. City of Hidalgo, 575 F. App'x 419 (5th Cir. 2014).

There is one case, however, that holds that the same facts can support both a retaliation and an interference claim.

• Edusei v. Adventist Healthcare, Inc., No. DKC 13-0157, 2014 WL 3345051 (D. Md. July 7, 2014) (plaintiff was unlawfully denied FMLA leave to which she was otherwise entitled by defendant's one-day suspension and termination (interference claim); but also states a retaliation claim because plaintiff's discipline was harsher than other employees for same alleged offense).

It is important to properly label claims, as one plaintiff in a 2016 case discovered.

• Jaskiewicz v. St Mary's of Michigan, No. 15-cv-10265, 2016 U.S. Dist. LEXIS 14654 (E.D. Mich. Feb. 8, 2016) (court grants summary judgment for employer on claim that employer failed to provide sufficient information as to employee's FMLA rights; but plaintiff's claim was tossed because she pled this as a retaliation claim not as one for interference; thus, court holds: "The lack of an interference claim in her pleadings is fatal to her ability to claim FMLA interference at the summary judgment stage.").

A 2018 case adheres to this reasoning in granting a summary judgment to an employer on an interference claim.

• Schram v. Dow Corning Corp., No. 16-14312, 2018 U.S. Dist. LEXIS 2797 (E.D. Mich. Jan. 8, 2018) (holding that plaintiff failed to plead her claim with enough specificity to put defendant on notice of the theory of liability it must defend; moreover, court notes that the complaint's citation to the statute only references "29 U.S.C. Section 2615 (a)(2)," retaliation provision and "29 C.F.R. § 825.220(c)" retaliation regulation).

Moreover, the Sowards case cited below weaponized plaintiffs with a retaliation claim when their employer filed a counterclaim to an FMLA lawsuit asserting that the FMLA claim was filed maliciously. Applying Burlington Northern, the court held that such a retaliation claim was permissible.

• Sowards v. Toyota Motor Mfg, No. 3:15-13029, 2016 U.S. Dist. LEXIS 75080 (S.D. W. Va. June 9, 2016).
•

...