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Report Link FMLA Allows An Employer To Base Termination On Performance Problems Discovered During An Employee’s Leave.Ogletree Deakins - March 26, 2009 The Family and Medical Leave Act allows individuals to take unpaid leave from work and requires that in most cases, such individuals be returned to their prior position or an equivalent one upon return from the leave. The 7th U.S. Circuit Court of Appeals has clarified that requirement, and has held that when an employer discovers information during an employee’s FMLA leave that would otherwise form the basis of a valid termination, the FMLA does not act as a bar to such adverse employment action. Report Link The Fifth Circuit Court of Appeals Applies the Burlington Retaliation Standard to a Retaliation Claim Under the FMLA.Phelps Dunbar LLP - October 28, 2008 In a recent federal appellate court decision issued late last month, the Court was faced with an appeal challenging the granting of a summary judgment in favor of an employer for alleged violations of the Family and Medical Leave Act ("FMLA"). In McArdle v. Dell Products LP, Civil Action No. 07-51159, 2008 WL 4298840 (5th Cir. (Tex.)) plaintiff, Brian McArdle, alleged that his former employer, Dell, had violated both the entitlement and anti-retaliation provisions of the FMLA when following the end of his medical leave, an important sales account was not returned to his portfolio and he was subsequently terminated. The district court had granted Dell's motion for summary judgment on all claims under the FMLA. On appeal, the Fifth Circuit reversed in part and affirmed in part. While the Fifth Circuit determined that Dell did not violate the FMLA in terminating McArdle for his performance, the Court concluded it was a fact issue for a jury as to whether Dell had violated FMLA by failing to return an important sales account to McArdle when he returned after leave. A brief review of the facts and analysis set forth in the Fifth Circuit's opinion is instructive. Report Link FMLA Does Not Support Retaliation Claims By Employee Who Did Not Actively Participate In Spouse's Previous FMLA Lawsuit.Ogletree Deakins - June 12, 2008 The Family and Medical Leave Act allows employees to take reasonable leave for certain reasons spelled out in that Act. The FMLA includes prescriptive provisions – which create a series of substantive rights, consisting primarily of 12 weeks of unpaid leave – along with proscriptive provisions, which bar employers from penalizing employees and other individuals from exercising rights granted under the FMLA. The 5th U.S. Circuit Court of Appeals recently addressed the issue of whether the anti-retaliation provisions of the FMLA automatically protect the co-worker/spouse of an employee from retaliation, and held that it does not. Report Link Court Applies Title VII Retaliation Standard to FMLA Retaliation Claim.Jackson Lewis LLP - December 15, 2006 Following the U. S. Supreme Court's 2006 ruling making it easier for individuals to sue employers for retaliation under Title VII of the Civil Rights Act of 1964, federal courts have begun using the broad 'reasonable employee' standard in analyzing retaliation claims under other statutes. In Burlington N. & Santa Fe Ry. Co. v. White. 126 S. Ct. 2405 (2006), the Supreme Court resolved a split of opinion among the federal circuit courts concerning the legal standard for plaintiffs in such cases, holding that an "ultimate employment decision" or "materially adverse change in the terms and conditions of employment, such as a discharge, demotion, or loss of pay' is not required. Rather, the Court said the standard should be whether a "reasonable employee would have found the challenged action materially adverse," which turns on whether the employer's action "might have dissuaded a reasonable worker from making or supporting a charge or discrimination." Report Link Federal Court in Arizona Finds Paid Leave Retaliatory under FMLA.Ford & Harrison LLP - December 11, 2006 In the first case expanding the U.S. Supreme Court's recent decision in Burlington Northern v. White (2006) (addressing what constitutes an adverse employment action under Title VII) to a Family and Medical Leave Act (FMLA) case, a court in Arizona held that putting an employee on an involuntary paid leave was an adverse employment action in retaliation for requesting additional FMLA leave. See Foraker v. Apollo Group, Inc. (D. Ariz. 2006). The Arizona court stated that a reasonable employee likely would find such an administrative leave to be "materially adverse" as required by Burlington. The court held that the elimination of all job responsibilities, all contact with co-workers, all experience and education that would come from fulfilling one's job responsibilities, and all periodic performance reviews for an indefinite period of at least 12 months "well might have dissuaded a reasonable worker" from requesting FMLA leave. Report Link Fired Employee's FMLA Suit Rejected (pdf).Ogletree Deakins - June 19, 2006 Fired one day after FMLA leave expired. Report Link Termination Justified In FMLA Leave Case (pdf).Ogletree Deakins - May 11, 2006 The federal appellate court with jurisdiction
over Arizona employers recently
dismissed a lawsuit brought
by an employee who claimed that he
was terminated shortly after requesting
leave under the Family and Medical
Leave Act (FMLA). According to
the Ninth Circuit Court of Appeals,
the trial judge correctly concluded
that the employee’s request for medical
leave was not a factor in the termination
decision and that rather he
was fired for swearing and threatening
his supervisor. Report Link Can Employees Be Fired While on FMLA Leave? (pdf).Buchanan Ingersoll & Rooney PC - November 02, 2005 Often, employers are afraid to terminate
an employee who is out on FMLA leave
because they believe that employees are
protected from any such termination by
federal law. In Throneberry v. McGehee Desha Count Hospital, 403 F.3d 972 (8th Cir. 2005), the 8th Circuit Court of
Appeals found that, under the right
circumstances, termination is
appropriate, even when FMLA leave is
involved. Report Link Liability Risks Do Not End When FMLA Leave Is Over: Retaliation under Family and Medical Leave Act.Jackson Lewis LLP - July 20, 2004 An employee who claims that as a result of taking protected FMLA leave, he or she has been subjected to an adverse employment action, such as a demotion or decrease in salary, can sue under the FMLA.
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