Fifth Circuit Punishes Employer for Failure to Provide Notice that Leave Would Count Against an Employee’s FMLA Entitlement
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The FMLA regulations require that employers provide individualized written notice to employees that the leave they are taking is FMLA-qualifying and will count against their 12-week entitlement. See 29 CFR § 825.208(a)-(b)(1). If an employer fails to provide such notice and the affected employee demonstrates that he or she has been prejudiced by the lack of notice, the employer may be found liable for interfering with the employee’s exercise of his or her FMLA rights, as illustrated by a recent decision of the Fifth Circuit Court of Appeals styled Downey v. Strain, Case No. 06-30613 (5th Cir. Dec. 12, 2007).

The employee in Downey took a medical leave of absence from her job in 2002. The employer counted the leave against the employee’s FMLA entitlement and notified her of this fact. When she returned to work, the employee had just over five days of FMLA leave remaining. When the employee re-injured herself and took a second paid leave of absence to have surgery, the employer counted the leave against her remaining FMLA entitlement, but this time did not notify her that the second leave would count as FMLA leave. When the employee came back to work two months later, the employer reassigned her to a position with fewer benefits.

The employee then sued, claiming that the failure to provide her with individualized written notice that the second absence would be designated as FMLA leave, and then the transfer to a different job upon her return to work, interfered with her rights under the FMLA in violation of 29 U.S.C. § 2615(a)(1). Specifically, the employee alleged that if she had known her leave would be counted as FMLA leave, she would have delayed her surgery until she accrued enough FMLA leave time to stay within her allotted days and thereby preclude the employer from reassigning her to a lesser position. The jury found for the employee and awarded her back pay and front pay, plus attorney’s fees and costs. On appeal, her employer argued, in part, that the regulations requiring individualized notice were invalid, drawing on Supreme Court and circuit court precedent finding other parts of the FMLA regulations unlawful.

The Fifth Circuit disagreed with the employer and concluded that the notice regulations were both consistent with the FMLA and valid as enforced in this case. The court reasoned that on the facts found by the jury, the employee proved that her employer’s noncompliance with the notice regulations impaired her ability to exercise her rights under the FMLA, including specifically the ability to delay her surgery until such time as she had sufficient FMLA leave, and thereby caused her prejudice.

The bottom line for employers

This case emphasizes once more that employers should promptly designate employees’ leave, whether paid or unpaid, as FMLA leave, or face a claim that an employee was prejudiced by the lack of notice. Employers may even conditionally designate leave as FMLA leave while waiting for an employee to return certification of a serious health condition. When employees provide advance notice of surgery, it is especially important to designate a leave as FMLA leave and periodically notify an employee of leave days remaining in order to avoid the employee claiming, as the employee did here, that she would have made a different decision if given full information.

*  Muskat, Martinez & Mahony, LLP represents employers in labor and employment lawmatters.  For more information, visit our website at www.m3law.com, or contact any of our lawyers:
 
Mike Muskat, (713) 987-7851, mmuskat@m3law.com
Samantha Martinez, (713) 987-7852, smartinez@m3law.com
Michelle Mahony, (713) 987-7849, mmahony@m3law.com
Stephanie Schmutz Parente, (713) 987-7853, sparente@m3law.com
Amy Ferber, (713) 987-7850, aferber@m3law.com