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An employee is "eligible" for leave under the FMLA if she has been employed for at least 12 months by an employer covered under the code, and has worked at least 1,250 hours for the employer during the previous 12-month period. 29 U.S.C. 2611(2). Eligible employees are entitled to a total of 12 workweeks of leave during any 12-month period for a serious health condition that makes the employee unable to perform the functions of the position of such employee. A serious health condition is an illness, injury, impairment, or physical or mental condition that involves ... inpatient care in a hospital ... or continuing treatment by a health care provider. Once the employee returns from leave, she must be reinstated to her previous position or an equivalent one.
The are two main ways in which an employer may violate FMLA rights. One is a retaliation or discrimination claim which arises when an employer discharges or in any other manner discriminates against any employee who asserts her FMLA rights or who complains about her inability to assert said rights due to the employer's conduct.
The other kind of violation is an interference claim which makes it unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under FMLA. Under this theory, a denial, interference, or restraint of FMLA rights is a violation regardless of the employer's intent. Thus, the fact that an employer innocently dismissed the employee because that employee exercised her FMLA rights does not absolve that employer from liability.
An employer can defend the claim, however, by showing that "the dismissal would have occurred regardless of the employee's request for or taking of FMLA leave. An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period in any event, and therefore would not be entitled to restoration. See 29 C.F.R. section 825.216(a)(1). In fact, this is one of the most common defense that the employer use in defending FMLA claims. Here is a typical scenario: an employee goes on FMLA leave, is being terminate shortly after, and then the employer argues that the employee was terminated for tardiness/excessive absenteeism or for performance issues. At this point, the employee has the burden of demonstrating to the court that the reasons for termination are not true or pretextual, by showing such inconsistencies or contradictions in the employer's arguments that make those arguments sound untruthful or at least suspiciously non-credible.
Thus, although the time of termination alone might not be sufficient to prove FMLA violation, whenever termination occurs while the employee is on leave, that time is of significance. Thus, in Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 061 (10th Cir. 2002) the court observed that the timing of the employee's termination, which occurred during leave, indicated causal relation between her FMLA leave and her dismissal. The timing is particularly suggesting when termination occurs shortly after the employee notifies her employer that shoe would need to take FMLA leave.
By Arkady Itkin - San Francisco & Sacramento Employment Lawyer
