TICK, TOCK: CLARIFYING THE FMLA STATUTE OF LIMITATIONS FOR CLAIMS INVOLVING ABSENTEEISM POLICIES.

• Author: Lavelanet, Sarah H.

1. INTRODUCTION

   Jane has been a department store employee for the past six years. (1) Her employer has a policy whereby she receives a negative mark on her record for each unauthorized absence. (2) After accumulating ten negative marks on her record, her employer may terminate her. (3) Four years ago, Jane's two children were hospitalized, requiring her to take time off from work during a busy holiday season. (4) This resulted in three unauthorized absences as her employer denied her leave requests due to the busy season. (5) Jane did not contest these denials for fear of losing her job, especially considering she had several unauthorized absences left until she risked termination. (6) She subsequently accrued additional unauthorized absences throughout the next few years. (7) Recently, Jane requested a day off to attend her daughter's graduation, but her employer again denied her request, resulting in an additional unauthorized absence. (8) Consequently, she received a termination letter citing to excessive absences in violation of their policy. (9) If Jane were to bring an FMLA claim against her employer, the claim's viability would depend on where it is filed. (10)

   Currently, disagreement exists among federal circuits as to when a Family Medical Leave Act ("FMLA") claim begins to accrue. (11) According to the FMLA, the statute of limitations runs from "the date of the last event constituting the alleged [FMLA] violation...." (12) However, courts are split on the interpretation of "last event," specifically in the context of scenarios involving employers like Jane's who adopt some form of an absenteeism policy. (13) This conflict has created inconsistent outcomes, thereby affecting employee rights. (14)

   Under current case law in the Seventh and Eighth Circuits, if Jane decides to take legal action against her employer for FMLA violations, any claims relating to her three absences from four years ago would be time-barred. (15) However, in the Sixth Circuit, these claims may still be viable. (16) If Jane were to bring suit in the Fourth Circuit, the viability of the claims would depend on the district court. (17) In light of the foregoing, clarity regarding accrual dates for FMLA claims is essential for plaintiff-employees to avail themselves of needed job protection. (18) Sadly, many workers may find themselves in dilemmas such as Jane's as they likely juggle work and caregiving responsibilities. (19) Given the increased importance and applicability of the FMLA, it is in the workforce's best interest to seek uniformity when applying the statute of limitations. (20)

   This Comment addresses the ambiguity within the FMLA statute of limitations, specifically the contested interpretation of "last event." (21) Part II provides background on the FMLA, including its history, purpose, and relevant provisions such as eligibility, rights, and enforcement thereunder. (22) Part III analyzes how federal circuit courts are split on the interpretation of "last event" and how this affects the timeliness of FMLA claims. (23) Part IV proposes amending the FMLA regulations to clarify the limitations period using the Barrett holding that "last event" constitutes the last denial of FMLA rights. (24) Finally, Part V concludes, asserting that if this solution is adopted, the circuit split will be resolved, thereby addressing the ambiguity associated with the accrual period for FMLA claims involving absenteeism policies. (25)

2. HISTORY, PURPOSE, AND PROVISIONS OF THE FMLA

   1. HISTORY OF THE FMLA

      Prior to the enactment of the FMLA, the United States was the only industrialized nation without some form of family leave policy. (26) However, an increased number of working mothers with young children, coupled with the more demanding needs of single-parent households and the elderly, elicited a need for the federal provision of family leave. (27) As a result, after years of proposals and compromise, the FMLA was signed into law by President Bill Clinton on February 5, 1993. (28) The Act was considered landmark legislation as it was the first federal law to formulate a work-family policy. (29) When signing the bill into law, President Clinton declared that the American workforce "[would] no longer have to choose between the job they need and the family they love." (30)

   2. PURPOSE OF THE FMLA

      Ultimately, the FMLA was enacted by Congress "to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity...." (31) Congress also sought "to entitle employees to take reasonable leave" for FMLA-eligible events, including: medical reasons, a child's birth or adoption, or the care of a child, spouse, or parent suffering from a "serious health condition." (32) While part of Congress viewed the FMLA as a new minimum labor standard with protections similar to the Fair Labor Standards Act, (33) in reality, it is "grounded in the same soil as other federal antidiscrimination statutes." (34) Organized labor was slow to render support for the FMLA, emphasizing that it could not have been regarded as a minimum labor standard. (35) Additionally, it is unlikely Congress created the FMLA as a minimum labor standard given its limited scope when compared to existing minimum labor standards. (36)

      The Act itself has anti-discriminatory underpinnings (37) and was heralded by the Supreme Court as a guard against sex-based discrimination and stereotyping. (38) It was targeted to combat gender discrimination, specifically discrimination present at the work and family partition line where there existed gender-based overgeneralization. (39) By designing an all-encompassing, routine employment benefit, Congress sought to rid family leave of its stigmatized view as an excessive drain on the workplace caused by female employees. (40)

   3. FMLA PROVISIONS

      i. Eligible Employees and Covered Employers

      Surprisingly, the FMLA does not apply to many employers and employees due to its extensive coverage criteria. (41) Ironically, women are more likely to be excluded from coverage. (42)

      For an employee to become FMLA-eligible, he or she must work for the same employer for at least one year (43) and at least 1,250 hours within the past year, an average of twenty-five hours per week. (44) However, meeting these requirements does not necessarily guarantee an employee's eligibility because the FMLA must also apply to the employer. (45)

      All public sector employers are covered under the FMLA, regardless of the number of workers employed. (46) However, private-sector employers must meet additional criteria. (47) They must employ at least 50 employees "for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year." (48) Additionally, the 50 or more employees must be within 75 miles of the worksite (49) of the eligible employee. (50) Finally, the private employer must be "engaged in commerce or in any industry or activity affecting commerce." (51) Only employees meeting the above requirements may avail themselves of the FMLA's rights and protections. (52)

      ii. FMLA Rights

      Once an employee is eligible for FMLA leave, (53) he or she is permitted to take up to 12 weeks of unpaid leave annually for the following circumstances: (54) (a) to care for a newborn child; (b) to care for a newly adopted child or newly placed foster child; (c) to care for a spouse, child, or parent suffering from a serious health condition; (55) and (d) to care for himself or herself due to a serious health condition. (56) In addition, the FMLA provides eligible employees with two types of military family leave. (57) It also provided temporary leave related to the COVID-19 pandemic, although this benefit has since expired. (58)

      Although the Act requires unpaid leave, there are circumstances in which accrued paid leave, such as vacation and sick time, may be substituted for unpaid leave. (59) An employee may elect, or an employer may require, such a substitution. (60) However, if accrued paid leave is less than 12 weeks (or 26 weeks in the case of military caregiver leave), the employer is required to provide additional unpaid leave to attain the 12 weeks (or 26 weeks, if applicable). (61)

      The FMLA also protects three basic rights of covered employees. (62) First, it protects an employee's right to be restored to the same or equivalent position upon return from FMLA leave. (63) Therefore, the employer must restore the employee to a position with the same duties and responsibilities as the previous position and with the same required skills and authority. (64) The FMLA also protects a covered employee's right to continued benefits throughout protected leave. (65) This protection requires employers to maintain benefits, including medical insurance, and also requires the continued payment of premiums typically covered by the employer. (66) Finally, the Act protects a covered employee's right not to be penalized for exercising, or attempting to exercise, FMLA rights. (67) More specifically, it prohibits employers from interfering with, restraining, or denying employees from exercising, or attempting to exercise, their FMLA rights or from discharging or otherwise discriminating against an employee for exercising such rights. (68)

      Notably, the rights prescribed by the FMLA are a minimum standard. (69) As such, employees may be entitled to more generous benefits by way of more comprehensive state or local leave laws or through employers with more generous leave policies. (70)

      iii. FMLA Enforcement

      Employees who believe employers have violated their FMLA rights have two choices: (i) file a complaint with the U.S. Department of Labor's Wage and Hour Division; (71) or (ii) initiate a private lawsuit in state or federal court. (72) These choices are mutually exclusive. (73)

      For administrative complaints, the Department of Labor investigates the complaint...