Top Five Curveballs to Look Out For When Dealing with the FMLA

The Family and Medical Leave Act (“FMLA”) requires covered employers to provide eligible employees with unpaid family and medical leave for certain qualifying reasons. While employers should definitely know the FMLA basics (i.e., whether they are “covered employers” who employ any “eligible employees”), below are five FMLA potential “curveballs” that every employer should look out for when dealing with the FMLA:

(1) Employees Seeking FMLA Leave Do Not Need to Even Mention the FMLA

Employers and human resources professionals should be aware of the qualifying reasons for FMLA because when an employee first seeks FMLA leave, the employee does not need to even mention the FMLA. The employee must merely provide at least verbal notice sufficient to make his or her employer aware that the employee needs FMLA-qualifying leave, as well as information regarding the anticipated timing and duration of the leave. See 29 C.F.R. § 825.302(c).

 (2) FMLA Interference: Liability without a Shred of Discriminatory Intent

There are two main types of claims under the FMLA: (1) interference and (2) retaliation. An FMLA interference claim requires the employee to prove that he or she was entitled to the benefit denied. An employee does not need to show that his or her employer intended to deny the right because the employer's motives are irrelevant. Therefore, an employer who unintentionally violated the FMLA could still be liable for an interference claim.

However, to succeed on a retaliation claim, an employee must demonstrate that his or her employer intentionally discriminated against him or her in the form of an adverse employment action for having exercised an FMLA right. Therefore, an employee who brings a retaliation claim faces the increased burden of showing that an impermissible retaliatory or discriminatory animus motivated his or her employer's actions.

(3) If the Employer Does Not Specify a Date Calculation Method, the Most Beneficial Outcome for the Employee is the Default

Generally, eligible employees are entitled to up to 12 weeks of FMLA leave at any time in the fixed 12-month period selected. 29 C.F.R. § 825.200(c). An employee could take 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year. Id. There are different ways that an employer may calculate the 12-month period and if the employer does not specify a method for such a calculation, then the method with “the most beneficial outcome for the employee will be used.” 29 C.F.R. § 825.200(e).  Therefore, if the employer fails to specify a calculation method, the method that is the most favorable to the employee will be the default.

(4) The New Definition of “Spouse” Under the FMLA

 Previously, the definition of “spouse” under the FMLA followed a “place of residence rule,” which determined whether someone met the definition of “spouse” based on the law of the state where the employee lived. However, it recently changed to a “place of celebration” rule as a result of the Department of Labor’s issuance of a Final Rule on February 25, 2015. Now, under the amended FMLA regulatory definition, eligible employees in legal same-sex marriages can take FMLA leave to care for their spouse, regardless of where they live. The Final Rule changed the regulatory definition of spouse to look to the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides. See 29 C.F.R. § 825.122(b).

(5) General Notice Poster Must be Readily Seen by Employees AND Applicants

 The Department of Labor Wage and Hour Division published a poster that satisfies the general notice requirement, but employers are free to make their own poster so long as it contains all of the requisite information. While most employers are aware of their obligation to post the general notice poster, many do not know that it must be posted prominently where it can be readily seen by employees and applicants for employment. 29 C.F.R. § 825.300(a)(1). Additionally, covered employers must post the general notice even if they do not employ any eligible employees. 29 C.F.R. §825.300(a)(2).  An employer that willfully violates the posting requirement may be assessed a civil money penalty by the Wage and Hour Division not to exceed $163 for each separate offense. 29 C.F.R. § 825.300.

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