Jury awards 8.1 million dollars in FMLA/ADA lawsuit

On September 1, a federal jury in South Florida found that a company had violated the Family and Medical Leave Act (FMLA) and Americans With Disabilities Act (ADA) after firing an employee undergoing chemotherapy. According to the employee, she was harassed about her work attendance and wrongfully accused of stealing from the store. The employee testified that the store’s district manager began to call her just days after her operation to inquire when she would be reporting to work. Afraid that she would lose her job, the employee returned to work prior to the expiration of her medical leave. Thereafter, the district manager began criticizing her performance and voicing his displeasure regarding her need for time off due to chemotherapy treatments. After accusing the employee of theft, the manager terminated her. However, the theft charge was later disproved. After a five-day trial, jurors awarded the employee $4 million for pain and suffering, $4 million for punitive damages and $100,000 for lost wages. 

Heightened FMLA Reporting Requirements

While employers are permitted to establish more stringent reporting requirements during an employee’s FMLA leave, they should be aware that an employee’s specific situation may require exceptions to the rule. In a recent case, a federal circuit court found that an employee’s allegations could proceed to trial where she was required to comply with her employer’s internally created heightened FMLA notice requirements, and thereafter terminated for allegedly not providing adequate notice of her situation. The employer in this case required employees to report the reason for their absences within two days of the specific absence, rather than “as soon as practicable” as dictated under the FMLA regulations. The employee complied with this requirement throughout her employment, until she was hospitalized for a psychological condition. Instead of contacting the employer herself, the employee’s mother contacted the Company within two days to relate her daughter’s condition. A few days later, while recovering at her mother’s house, the employee communicated her condition to her employer and requested intermittent FMLA leave. Shortly thereafter the employee received a letter from her employer informing her that her employment was terminated due to non-FMLA approved absences. Reversing the district court’s grant of summary judgment, the Court noted there was insufficient evidence to conclude that the employee had affirmatively refused to comply with the Company’s procedure. Instead, the evidence suggested that the employee was suffering from a severe psychiatric episode which raised an issue as to the application of the heightened notice requirements to the employee.

Department of Labor Clarifies Meaning of “Son or Daughter” under FMLA

The U.S. Department of Labor recently issued an "Administrator's Interpretation" on the definition of "son or daughter" under the FMLA. The FMLA permits workers to take up to 12 weeks of unpaid leave for, among other reasons, the adoption or birth of a child or to care for a son or daughter with a "serious health condition.” The FMLA currently defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” In the new Interpretation, the term in loco parentis now includes anyone who intends to provide day-to-day care and/or financial support, including unmarried partners, stepparents, and same-sex partners, even if the employee does not have a biological or legal relationship to that child. To establish the existence of an in loco parentis relationship, an employee need only submit a statement affirming that the necessary ties exist to be eligible for FMLA benefits.

Terminating a high-level employee who complained about discrimination because of employer’s fear of sabotage and “awkwardness” results in a reversal of summary judgment

In an opinion handed down in early July, the Eleventh Circuit found in Alvarez v. Royal Atlantic Developers, Inc., that an employee was entitled to a trial after she was terminated following a discrimination complaint. Interestingly, the decision to terminate the employee, who worked as the Company’s controller, had already been made. The Company was waiting to terminate her until it could find a replacement, but the employee heard about it “through the grapevine.” Upon learning of her impending termination, the employee wrote a letter of protest to her bosses (who were also the owners of the Company), complaining, among other things, about what she believed to be discrimination based on her national origin (Cuban-American). Her bosses read the letter and fired her the next morning. 
The employer argued that there was no causal connection between the employee’s letter and her firing because she was going to be terminated anyway. In addition, the employer claimed that even if her letter of complaint was a factor in the firing, it had a legitimate non-retaliatory reason for firing her immediately, because (among other things) it would be "awkward" and "counterproductive" for the employee to remain in the office after she expressed such unhappiness with the job, and the employer feared that she might use her position as controller to sabotage the company’s operations. 

The Court rejected this argument, noting that the evidence established the employee had been terminated earlier than she would have been because of the letter, and that to condone the employer’s reasons for prematurely firing her would be tantamount to doing away with the concept of retaliation. However, the Court did recognize that there could be instances in which an employer might possess a reasonable, fact-based fear of sabotage or violence, in which case the employer would be safe from a retaliation violation. Accordingly, the Court concluded that the employee would be entitled to prevail unless the employer could convince a jury that the employee would have sabotaged their operations or harmed others if she had remained employed, and that firing her was the least drastic means of preventing the employee from engaging in such actions. The Court remarked that the employee’s damages would be limited to the length of time she would have remained on the job but-for the letter; that is, until her replacement was found. Unfortunately for the employer, the position still remained vacant three years after the employee’s termination.