Kentucky Employment Law Blog

Supreme Court Limits State Employees' Protections Under FMLA

The Supreme Court has limited state employees' protections under the Family Medical Leave Act (FMLA) in its recent decision, Coleman v. Court of Appeals, No. 10-1016 (March 20, 2012). The Court was predictably divided 5-4 with all five Republican appointees (Roberts, Scalia, Thomas, Kennedy & Alito) voting against the employee, whil all four Democratic appointees (Ginsburg, Breyer, Kagan & Sotomayor) voting in favor of the employee.  

The Court ruled in 2003 in Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 1, that states did not have sovereign immunity against damages suits under the FMLA premised on a violation of 29 U.S.C. 2612(a)(1)(C), which regards care for a family member suffering from a "serious health condition." The ruling was premised on the reality that women by far most often took leave from work to care for ailing family members; thus, the Court ruled that Congress had properly abrogated the states' sovereign immunity from damages suits.

The Coleman case involved what the Court majority called the "self-care" provision under 29 USC 2612(a)(1)(D), which allows for unpaid leave for an employee to take care of themself, i.e., recover from their own illness or injury.  The Court majority was utterly unmoved by the acknowledged reality that the FMLA's "self care" provision allowed single parents, who are disproportionately women, to retain their jobs:

       The petitioner’s last defense of the self-care provision is that the provision helps single parents retain their jobs when they become ill.  This, however, does not explain how the provision remedies or prevents constitutional violations. The fact that most single parents happen to be women demonstrates, at most, that the self-care provision was directed at remedying employers’ neutral leave restrictions which have a disparate effect on women. “Although disparate impactmay be relevant evidence of . . . discrimination . . . such evidence alone is insufficient [to prove a constitutional violation] even where the Fourteenth Amendment subjects state action to strict scrutiny.”  To the extent, then, that the self-care provision addresses neutral leave policies with a disparate impact on women, it is not directed at a pattern of constitutional violations. Because, moreover, it is “unlikely that many of the [neutral leave policies] . . . affected by” the self-care provision are unconstitutional, “the scope of the[self-care provision is] out of proportion to its supposed remedial or preventive objectives.”   

Robert L. Abell
www.RobertAbellLaw.com 

Employer's Pretextual Reasons For Discharge Warranted Liquidated Damages for FMLA Violation, Sixth Circuit Rules

"Pretextual reasons for discharge manufactured after the fact in order to justify an earlier wrong are not consistent with good faith" stated the Sixth Circuit in Thom v. American Standard, Inc., Nos. 09-3507/3508 (6th Cir., January 20, 2012). The Court reversed a district court judgment not awarding liquidated damages where the Family Medical Leave Act (FMLA) was violated.

Liquidated damages -- in an amount double the amount of any compensatory damages -- are a presumed remedy under the FMLA, as the Sixth Circuit explained: "There is a strong presumption in favor of awarding liquidated damages that are double the amount of any compensatory damages." The burden is on the employer to show, despite a proved FMLA violation, it acted in good faith to comply with the FMLA. Hite v. Vermeer Mfg. Co., 446 F3d 858, 868 (6th Cir. 2006). 

In this case, as noted in an earlier post, FMLA Violated by Employee's Termination, Sixth Circuit Rules, American Standard claimed that it had long used a "rolling" method for calculating an employee's FMLA leave, a position that it first raised after it had fired Thom, a 36-year employee, and he had filed suit. The company got no further with this argument as proof of its good faith, as the Sixth Circuit pointedly rejected it and observed:

• Pretextual reasons for discharge manufactured after the fact in order to justify an earlier wrong are not consistent with good faith.
  
  
• Pretextual excuses are equivalent to reasons "not held in good faith." See, e.g., Thornley v. Penton Publishing, 104 F3d 26, 30 (2d Cir. 1997)("the jury is certainly entitled to reject the standards [for terminating employees] claimed by the employer on the grounds that these standards were pretextual -- i.e., they were not held in good faith.").
  
  
•  American Standard cannot demonstrate good faith by pointing to its reliance on a policy that Thom did not know about and was not used in Thom's case.
  
  
• Furthermore, after Thom was fired, his doctor wrote American Standard explaining how matters had developed with Thom's shoulder and requesting that he be reinstated to employment, a request that the company ignored, a stonewalling that caused the Sixth Circuit to observe that its "obdurate refusal to correct an obvious mistake that constituted a wrongful discharge of this 36-year employee reinforces the case for liquidated damages.

Robert L. Abell
www.RobertAbellLaw.com 

 

Retroactive Termination of Medical Insurance Violates FMLA

The Family Medical Leave Act (FMLA) prohibits an employer from interfering with or retaliating against an employee who asserts or exercises her rights to take leave from work under the FMLA. Both these prohibitions were violated by the employer's retroactive termination of an employee's medical insurance the Seventh Circuit has ruled in Ryl-Kuchar v Care Centers, Inc., No. 08-2688 (May 11, 2009).

Kathleen Ryl-Kuchar had worked for Care Centers, Inc. for over 17 years when she became pregnant with triplets in late 2002. She worked all the way up to delivery on July 17, 2003, although during the later part of her pregnancy, she worked from home and in some weeks less than 35 hours per week. Ryl-Kuchar returned to work right after delivery but began FMLA leave a short time later. A few weeks later, she elected to terminate her employment effective October 1.

About six weeks after resigning, Ryl-Kuchar learned that her health insurance had been retroactively cancelled on June 15 -- just at the point where, as the court observed, she really began "piling up" the medical bills related to her pregnancy. The employer asserted that it had retroactively cancelled her medical insurance on the grounds that she had become ineligible for the coverage by having worked for less than 35 hours some weeks prior to delivery.

Ryl-Kuchar sued under the FMLA and claimed that the retroactive cancellation of her medical insurance was based on her decision to take FMLA leave. She presented evidence "that Care Centers was concerned with rising health care costs, as evidenced by an article in the company newsletter," and that the claim she had become a part-time employee was groundless, since she was a salaried employee and had kept, at all times, the same rate of pay. Only after she took FMLA leave, Ryl-Kuchar pointed out, was there an audit of her payroll records and a claim of "mistake" regarding her eligibility for medical insurance. This proof, the court ruled, was enough to show that Care Centers retaliated against Ryl-Kuchar for taking FMLA leave by retroactively cancelling her medical insurance.

The court also ruled that Ryl-Kuchar had easily show unlawful interference with her rights under the FMLA. The court explained that the FMLA requires that an employee on FMLA leave is "entitled to have health benefits maintained while on leave as if the employee had continued to work instead of taking the leave."

Robert L. Abell
www.RobertAbellLaw.com

Retaliation Against Employee Taking Family Medical Leave Held Unlawful

Retaliation against an employee for taking leave under the Family Medical Leave Act (FMLA) is unlawful, the Sixth Circuit has ruled in Bryant v. Dollar General Corp. (No. 07-5006 decided August 15, 2008).   The court affirmed a jury verdict for a fired employee.

The employer, Dollar General, argued that the "FMLA does not bar an employer from firing an employee because that employee took FMLA leave,"  a contention that was soundly rejected.  First, the "overwhelming consensus of the case law .. as well as the nature of the statutory scheme and the FMLA's legislative history" weighed "strongly in favor of rejecting" Dollar General's argument.  Second, "any 'right' to take unpaid leave would be utterly meaningless if the statute's bar against discrimination failed to prohibit employers from considering an employee's FMLA leave as a negative factor in employment decisions."  Third, adopting Dollar General's position would run counter to principles of statutory construction that caution against absurd results. 

Robert L. Abell
www.RobertAbellLaw.com