Changes Afoot for FMLA
Unchanged over 15 years on the statute books, the federal Family & Medical Leave Act has often been applied and construed by Minnesota’s federal district and appellate courts. Change is now in the wind, as the Department of Labor has issued proposed regulations that are expected to take effect later this spring.
This winter—February 5, 2008, to be precise—marked the 15th anniversary of the Family & Medical Leave Law (FMLA), 29 U.S.C. §2601, et seq. Unchanged for that entire period, the law includes some provisions favorable to employers and others that give the nod to employees.
The federal law, which went into effect six months later, was the first major piece of legislation enacted during the Clinton administration. Now 15 years later, the measure that allows employees of large companies to be granted unpaid time-off for personal and family medical purposes is attracting renewed attention and some likely-successful proposals for change.
The federal trial and appellate courts in Minnesota have been in the forefront in construing and applying the measure over the years. The 15th anniversary of the FMLA provides an opportune occasion to examine how it has been treated by the courts in Minnesota over the years and anticipate how it may change as it matures.
History & Hysteria
The history of the measure dates back to the 1980s when it was first conceived, no pun intended, as a means of allowing women time-off for pregnancy and maternity-related reasons. It was initially enacted by Congress in 1991. But certain quarters of the business community, some activated by hysteria, viewed the proposal as too burdensome.
The first President Bush agreed, and he vetoed the measure. During the 1992 presidential campaign, Bill Clinton supported the proposition, pledging to sign a new law. He was elected, the measure was reenacted, and the new president signed the bill, barely two weeks into his administration.
Millions of employees, including many in Minnesota, have utilized the law during its 15 years. The latest data available from the U.S. Department of Labor, which oversees the law, indicate that about 7 million employees take FMLA leave each year.
The FMLA is not the only statute of its type. More than one-third of the states—19 and the District of Columbia—have their own mini-versions of the FMLA. Although modeled after the federal measure, the local laws vary considerably. Some, such as in California and Washington, mandate some payment from employers to employees on leave. Others, like Ohio’s, include broader pregnancy- and maternity-leave provisions than those in the FMLA. In neighboring Wisconsin, a specific state agency, the Equal Rights Division of the Department of Workforce Development, is empowered to enforce the law directly and through administrative litigation proceedings.
But Minnesota does not have its own mini-FMLA. The closest comparable measure, the Minnesota Parenting Leave Law, Minn. Stat. §181.941, requires employers, regardless of size, to give time-off to employees to care for a sick child or attend children’s school-related activities. The measure allows a six-week unpaid leave of absence for birth or adoption, as well as up to ten hours of time-off for school-related events. The Minnesota measure, however, does not grant employees any right of leave for their own medical conditions, and it is not enforced by any state agency or regulatory body.
Kin and Kind
The FMLA occasionally is confused with its slightly older kin, the Americans with Disabilities Act (ADA), 42 U.S.C. §12101, enacted two years before the FMLA. Although both measures impose rights and obligations on employers and employees for health-related matters, they are substantially different. The ADA generally covers more employers and applies more broadly across the workplace to companies with 15 or more employees, barring discrimination against disabled employees and requiring employers to grant “reasonable accommodation” to those workers.
Another significant difference between the two measures is that the ADA has its own enforcement mechanism, the Equal Employment Opportunity Commission (EEOC), whereas the FMLA, while subject to interpretation by the Labor Department, does not have an active counterpart enforcement body. Although the Department of Labor can bring its own enforcement actions for injunctive relief and for reinstatement of wrongfully discharged employees, such proceedings are rare and most administrative actions are done through opinion letters. Consequently, claims under the FMLA almost invariably must be pursued through individual civil litigation by employees—subject to a two-year statute of limitations, extended to three years for “willful” violations—seeking recovery of damages, including double liquidated damages and attorneys fees for a successful claimant. Although state courts have jurisdiction under the FMLA, nearly all actions are brought in federal court.
Unlike the ADA, which has been interpreted rather unfavorably for employees by the courts, the FMLA has been kinder and gentler to the workforce. But it has been buffeted by critics from several quarters of the workplace, employers and employees alike, as reflected in a recent article in the Wall Street Journal with the tantalizing title: “Is Family Leave Act too soft or too tough?”1
On the eve of the 15th anniversary of the FMLA, the Labor Department, after receiving some 15,000 overtures expressing varying views on the subject, announced proposed changes in its regulations interpreting the act.
The promulgated modifications mainly address complaints by businesses that the measure is abused too often by employees. Under the newly proffered changes, workers generally would be required to call-in a request before taking a leave, except in emergencies, rather than taking as much as two days off before asking for a leave, as is allowed by the current regulation.
The new regulations also would allow businesses to require annual recertification of the severity of an employee’s health condition for ongoing FMLA claims, unlike the Minnesota measure that allows multiyear certification by medical providers. But the Department of Labor rejected a call for tightening the first-time-eligibility requirements, feeling any such change should be left to legislation.
The changes are slated to take effect this spring, after a 60-day response period, following official publication of the proposals at the 15th anniversary of the act.
The proposals parallel provisions of the 2008 Defense Authorization Act, signed by President Bush at the end of January, which allows family members to now take up to six months of unpaid leave from work to care for wounded military personnel. The law also permits up to 12 weeks off for a “qualifying emergency” relating to the call-up of a family member for active military duty or deployment.
While the positions of interested parties concerning the FMLA differ, the courts—including the federal appellate and trial tribunals in Minnesota—have weighed-in during the past 15 years with their own opinions. In commemoration of the 15th anniversary of the act, here’s a glimpse at 15 of the more important and interesting rulings on the FMLA of the federal and appellate trial courts governing Minnesota.
Two situations under the FMLA have been addressed by the United States Supreme Court, and the justices have reached differing outcomes in the two cases. Both of the cases have special relationships to the 8th Circuit. One of them resulted in a favorable ruling for employers limiting the scope of leave requirements. The other broadened the ambit of the law to cover state employees, and subsequently was applied narrowly by the 8th Circuit in a case decided late last year.
The high court’s first encounter with the FMLA came in a case from the 8th Circuit, Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002). The action was brought by an employee who was terminated after she took a leave of absence under her company’s 30-week leave policy but, when the period ended, was denied an additional 12 weeks she requested under the FMLA. She sued, pointing out that a Labor Department regulation required timely notice by an employer of FMLA-designated leave to trigger the 12-week period.
The 8th Circuit, affirming the trial court, held that the employee’s suit was improper and threw out her case.2 The Supreme Court, by a 5-4 margin, affirmed, ruling that the employee was “entitled to no more leave” after the “generous” 30-week period provided by her company, even though it was not designated as FMLA leave at the time. The Labor Department’s regulation was “invalid because it alters the FMLA … in a fundamental way”3 by expanding the amount of time that an employer may be required to allow an absence.
In a rebuke to the federalism theme that had dominated the high court during the period when Chief Justice William Rehnquist presided over the tribunal, the Supreme Court upheld applicability of the FMLA to state government bodies in Nevada Department of Human Resources v. Hibbs, 538 U.S. 1 (2003). In a ruling that surprised some observers, the Court, in a decision authored by the chief justice himself, ruled that state agencies are bound to follow the family-care provisions of the FMLA.
The case was brought by a male employee of a state agency, who was fired after a 12-week leave of absence he took under the FMLA in order to care for his sick wife. He sued the state, which claimed that it was immune from suit under the 11th Amendment, which generally bars damage suits in federal court against state entities.
The Court held that the measure was proper under §5 of the 14th Amendment, which empowers Congress to enforce that provision’s Due Process and Equal Protection clauses by appropriate legislation. After reviewing the legislative history of the measure regarding discrimination “limiting women’s employment opportunities,” Chief Justice Rehnquist concluded for the six-member majority that the FMLA constituted a valid exercise of congressional authority under §5. Although the intent of the law was to address discrimination against women, the Court applied it to the male claimant because of the congressional desire to overcome “invalid gender stereotypes in the employment context,”4 which constituted sufficient justification for “enactment of prophylactic §5 legislation.”5
But a recent ruling of the 8th Circuit viewed Hibbs narrowly. Late last year, in McKlintic v. 36th Judicial Circuit Court, 508 F.3d 875 (8th Cir. 2007), the court decided that the self-care provision of the FMLA does not apply to states. Prior to Hibbs, the 8th Circuit held that the 11th Amendment bars application of the FMLA to states in Townsend v. Missouri, 233 F.3d 1094 (8th Cir. 2000). Hibbs overruled that case as it pertains to family care portions of the act, but the appellate court early last year, in Miles v. Bellfontaine Habilitation Center, 481 F.3d 1106 (8th Cir. 2007), held that the FMLA provision allowing time-off for an employee’s own health condition did not abrogate the 11th Amendment because it was not predicated on the historical gender stereotypes that supported legislation under §5 of the 14th Amendment, the premise of Hibbs.6 The single issue came before the circuit court later in the year in McKlintic, and the court, relying on stare decisis, reached the same result, holding that a state employee could not take time off for personal “self-care.”
In addition to being the avatar among the federal appellate courts regarding the FMLA, the 8th Circuit Court of Appeals has addressed numerous lawsuits under the statute. The appellate jurists have decided nearly 60 FMLA cases, at least eight from Minnesota.
Deficiencies in employer-provided notice of FMLA leave, the subject of the Ragsdale case, have formed the basis for subsequent 8th Circuit litigation from Minnesota. In Groesnick v. Smithkline Beecham Corp., 454 F.3d 832 (8th Cir. 2006), the court affirmed a ruling of U.S. District Court Judge James Rosenbaum rejecting a claim by an employee based upon allegedly defective notice of FMLA leave from the employer. The employee, who was going to take a leave for surgery and quarreled with the employer regarding the start date of the FMLA leave, ultimately was terminated shortly after her 12-week leave ended. Affirming Judge Rosenbaum’s ruling, the appellate court held that, under Ragsdale, the employer did not violate the FMLA because the 12-week leave period expired before the employee sought to return to her job. Since Ragsdale “did not find a cause of action when the employer gave no notice, it followed that proper notice followed by confusion should not create a claim.”7
But the 8th Circuit reversed summary judgment for an employee who satisfied the “serious health condition” requirement of the FMLA in Rankin v. Seagate Technologies, Inc., 246 F.3d 1145 (8th Cir. 2000). U.S. District Court Judge Ann Montgomery dismissed the case brought by an employee who was terminated for excessive absenteeism following an FMLA leave. Applying an “objective test,” the 8th Circuit determined that the employee met the three requirements of a “serious health condition” to warrant continuing the FMLA leave: a “period of incapacity, including absence from work,” that the “incapacity exceeded three days,” and that the employee was under “continued treatment by [a health care provider] during this period.”8 While the employee “did not produce an overabundance of evidence” reflecting an affliction, there was sufficient evidence in the record, including her own testimony that she was “too sick to work,” which created a genuine issue of material fact that precluded summary disposition. The court in Rankin also allowed the employee to proceed with a common law claim for infliction of emotional distress.
The 8th Circuit later disowned distress damages for FMLA claimants in Rodgers v. City of Des Moines, 435 F.3d 904 (8th Cir. 2006). Revisiting its prior jurisprudence, the court concluded that it was “probably mistaken” in allowing emotional distress damages in previous FMLA litigation, especially in light of the Supreme Court’s statement in Hibbs that recoverable damages are “strictly defined and measured by actual monetary losses.”9 Because the FMLA specifically lists actual monetary losses, the court joined a number of “sister circuits” in rejecting a claim for emotional distress damages.
The bulk of FMLA decisions have been rendered at the trial court level. Federal judges in Minnesota have addressed a number of topics under the statute, ranging from notice requirements to the act’s relationship with other laws.
Insufficient employee notice, rather than insufficient notice by the employer, as was argued in Ragsdale, scuttled an FMLA claim in McGraw v. Sears, Roebuck & Co., 21 F. Supp.2d 1017 (D. Minn. 1998). The employee asserted violation of her FMLA rights on grounds that she told her manager she had begun depression therapy and her mother was ill. Judge Rosenbaum held that the FMLA claim could not be pursued because there was no evidence that the employee gave “any notice … to trigger her right to FMLA leave.” Because an “employer is not required to be clairvoyant,”10 the absence of “a single request” for leave barred her from asserting statutory violation. The court did deny a motion for summary judgment on the employee’s age discrimination claim, although her other claims, including the FMLA assertion, were dismissed.
An employee’s failure to provide notice of a requested leave also barred a claim in Schmittou v. Wal-Mart Stores, Inc., 2003 WL 22075763 (D. Minn. 2003) (unpublished). The employee sued after she was terminated for missing work because of her daughter’s illness. Judge John Tunheim pointed out that an employee does not have to invoke the FMLA by name, or satisfy the notice requirements. But since the employee did not provide “enough information to put [the employer] on notice [she] may be in need of FMLA leave,” there was no “notice sufficient to trigger any FMLA obligation on the part of the employer.” A state law claim under the Parenting Leave Act also was rejected because the state law permits employees only “to use their employer-provided sick benefits to care for a sick child,” which the employer allowed the employee to do in this case.
The arbitrability of an FMLA claim was rejected by Judge David Doty in Neppl v. Signature Flight Support Corp., 234 F.Supp.2d 1016 (D. Minn. 2002). An employee, a member of a union, was fired because of an unexcused absence, which occurred near the end of an FMLA leave. The employer’s contention that the claim must be arbitrated under the collective bargaining agreement with the employee’s union was rejected under the reasoning of Alexander v. Gardner Denver Co., 415 U.S. 36 (1974), which generally preserves the right to litigate statutory claims even if subject to resolution under the collective bargaining agreement. Feeling constrained by the precedent, Judge Doty declined to hold that arbitration was the exclusive remedy, and allowed the FMLA claim to proceed.
In Gonzalez v. City of Minneapolis, 267 F.Supp.2d 1004(D. Minn. 2003), a Minneapolis employee, terminated for tardiness and absenteeism, sued for violation of the FMLA and other statutory and common law claims. His FMLA claim was based on retaliation for taking an FMLA leave, which U.S. District Court Judge Paul Magnuson rejected because it failed to satisfy the required “causal” connection between his termination and any “protected activity” under the FMLA. The employee’s claim was based solely on the short time between the one-month FMLA leave and his termination four months later, which was too remote to establish a causal nexus. All of his other claims were also dismissed, except his retaliation claim under the Workers Compensation Act, which raised factual issues, precluding summary judgment.
The change in job duties for an advertising executive after returning from an FMLA leave barred summary judgment in Johnson v. Campbell Mithun, 411 F.Supp.2d 964 (D. Minn. 2005). Judge Tunheim held that the “very low level” of work given to the employee after she returned from leave created fact issues whether the employer interfered with her FMLA rights or retaliated against her. The employer’s expression of concern about the employee’s medical condition, coupled with no attempt to find her another position within the company, also made a retaliation claim actionable.
Judge Tunheim also upheld parallel interference and retaliation claims under the FMLA in McCarthy v. Eschelon Telecom, Inc., 2006 WL 2403602 (D. Minn. 2006) (unpublished). The employee’s assertion that she was placed on a performance-improvement program after she requested an FMLA leave and then was fired after her FMLA leave was exhausted and she failed to request an extension created a triable case for interference or retaliation under the statute. Because the employee had been led to believe she had complied with the requisite procedures and had “given proper notification regarding her requested leave,” the performance reasons for her termination could be viewed as pretextual and, therefore, created a triable issue regarding FMLA retaliation.
A request by a new employee for maternity leave, less than one year after beginning work, did not invoke a right under the FMLA in Scheidecker v. Arvig Enterprises, Inc., 122 F. Supp.2d 1031 (D. Minn. 2000). Although finding triable issues regarding pregnancy-related discrimination claims under Title VII of the Federal Civil Rights Act, Judge Montgomery held that the employee’s claim that she was terminated as retaliation for requesting a maternity leave 11 months after beginning work was not actionable because the employee did not qualify as an “eligible employee” under the FMLA, since she “was not employed ... for one full year before requesting maternity leave.”11
A terminated airlines employee was not preempted from pursuing an FMLA claim in Gilmore v. Northwest Airlines, Inc., 504 F. Supp.2d 649 (2007). The employee was fired on the day she returned to work from an FMLA leave, on grounds of poor attendance, including expiration of the leave period. The employer claimed that the FMLA suit could not proceed because the employee’s rights were governed by the Railway Labor Act, which requires mandatory arbitration for all “minor disputes,” under 45 U.S.C. §184. Judge Richard Kyle rejected the employer’s preemption claim, holding that the termination was not a “minor” dispute and could be resolved under the FMLA “without any reference to the collective bargaining agreement.”12
While the Department of Labor contemplates the proposed revisions in its interpretation of the FMLA, no action is likely to be taken by Congress this year. Depending upon the outcome of the presidential election, changes could be in store by this time next year.
Democrats have urged expansion of the law in several respects, including making it applicable to small and midsize employers. An idea floated during the Clinton administration in the 1990s, incorporating some type of payment to employees on leave through the unemployment compensation system, might also be revived if Democrats continue to control Congress.
In some Republican quarters, the FMLA has never been greeted warmly and pockets of aversion continue to exist in the GOP ranks, especially regarding the relatively lax medical requirements to certify a disability that some in the business community feel are too easily abused. Some Republican leaders have, in the past, sought to curtail the measure, but the law has become so entrenched in the workplace that significant retrenchment is unlikely.
So, as the FMLA reaches 15 years old, it’s far from a finale.
While the Labor Department has issued regulations from time-to-time interpreting various portions of the FMLA,13 some of which have been accepted by the courts and others rejected, the statute itself, until recent changes, has remained identical to that enacted in 1993. Here are some of its fundamental features that have stood the test of time:
2 Ragsdale v. Wolverine Worldwide, Inc., 218 F.3d 933 (8th Cir. 2000).
3 Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 90 (2002).
4 Nevada Department of Human Resources v. Hibbs, 538 U.S. 1, 10 (2003).
5 Id., at 12.
6 Miles v. Bellfontaine Habilitation Center, 481 F.3d 1106, 1107 (8th Cir. 2007) (per curiam).
7 Groesnick v. Smithkline Beecham Corp., 454 F.3d 832, 835 (8th Cir. 2006).
8 Rankin v. Seagate Technologies, Inc., 246 F.3d 1145, 1147 (8th Cir. 2000).
9 Hibbs, supra n. 4, at 20.
10 McGraw v. Sears, Roebuck & Co., 21 F. Supp.2d 1017, 1022 (D. Minn. 1998).
11 Scheidecker v. Arvig Enterprises, Inc., 122 F. Supp.2d 1031, 1045 (D. Minn. 2000).
12 Gilmore v. Northwest Airlines, Inc., 504 F. Supp.2d 649, 655 (2007).
13 29 CFR §825.100, et seq.
The author wishes to thank Tarcy Thompson, a law clerk with the firm, for her assistance in preparing this article.
MARSHALL H. TANICK is an attorney with the law firm of Mansfield, Tanick & Cohen, P.A., in Minneapolis and St. Paul. He is certified as a Civil Trial Specialist by the Minnesota State Bar Association and represents employers and employees in a variety of workplace-related matters.