Sixth Circuit: Employer With “Loose” Policies Loses FMLA Appeal When It Fails to Reinstate the Plaintiff or Notify Her of Her Rights

Yesterday, in a rather amusing opinion describing an all-too-typical situation, the Sixth Circuit Court of Appeals reversed summary judgment for an employer with “kind of loose” employment policies on an FMLA claim brought by a security guard who was not reinstated to her former (or any available) position following her maternity leave.  Clements v. Prudential Protective Services, LLC, No. 13-1414 (6^th Cir. Feb. 3, 2014).  Although the employer posted the mandatory FMLA notice, it did not provide employees with the similarly mandatory notice of their FMLA rights, or provide them with an eligibility or designation notice when they sought FMLA leave.  Indeed, it did not seem to have any written employment policies or regular employment practices at all.  The district court held that the plaintiff was not unfairly prejudiced by the employer’s many FMLA violations.  However, in light of the employer’s many inconsistent actions and statements, “this lack of clarity and the failure of defendant to give its employees notice of how to proceed upon completion of leave under the Act, [the appeals court did] not believe that summary judgment for defendant [employer] is appropriate.”

According to the opinion, the plaintiff began working as a security guard in 2004.  She took a maternity leave in 2006, but there were disputed facts (i.e., no one agreed about who said what to who or when) about the employer’s compliance with the FMLA at that time or what steps the plaintiff took (or even was required to take) by the employer.  In any event, following her 2006 leave, she was not reinstated to her former command center operator position, but was demoted to security guard (albeit at the higher rate of pay she had previously received).  In 2009, she again gave notice to her long-time supervisor that she would be taking maternity leave.  Again, there were disputed facts about what the plaintiff was told, but everyone agreed that neither she nor her supervisor notified the employer’s main office or submitted any written request for maternity leave.  There was also no dispute that no one informed the plaintiff about her FMLA rights.  The employer “did not provide its employees with information regarding the Act other than referring the employee to the text of the Family and Medical Leave Act if the employee inquired about it and the presence of a wall poster at certain locations where the guards sign in and out for their shifts.”

When the plaintiff called her supervisor in July to return to work from her unpaid leave, she was informed that he was taking a bereavement leave of absence and that she could not be reinstated because there had been cut-backs during her leave.  Her supervisor claimed that he had asked the intermediary to also tell the plaintiff that she could be reinstated at a different work site if she contacted the main office, but the plaintiff denied every receiving that information and the intermediary apparently was never deposed.    In any event, the plaintiff visited the main office and was given a letter from “Human Resources” (aka the COO’s secretary/receptionist/accounts payable-receivables clerk) confirming that she had been laid off so that she could get unemployment compensation and defer her credit card bills.  However, the VP of Operations informed her that she had not been laid off because other positions were available.    Nonetheless, she did not request and was not offered one of these other positions.  When she was not reinstated for several months – despite several calls to her supervisor, she filed an EEOC Charge and brought a lawsuit under the FMLA for interference with her rights. 

Upon seeking summary judgment, the employer’s first defense was that the plaintiff failed to follow the employer’s “usual and customary” leave procedures under 29 C.F.R. § 825.302(d). The plaintiff denied that such procedures existed. The trial court found a disputed issue of fact because the employer “failed to fulfill its own duties regarding notice to employees under the Act,” [at 29 C.F.R. § 825.300], and, therefore, “it could not defeat plaintiff’s claim under the Act by alleging that plaintiff did not follow procedures that did not exist.”  However, the trial court found that she suffered no prejudice from the employer’s failure because she was provided with all of the maternity leave that she sought.  The Sixth Circuit was not so convinced that the plaintiff suffered no prejudice from the employer’s failure to comply with the FMLA’s notice regulations:

 

But the record is unclear and creates uncertainty about whether plaintiff suffered prejudice as to her right under the Act to return to her previous position or an equivalent position. Defendant’s lack of internal procedures for employees preparing to take leave, those on leave and those seeking to return from leave are the source of the dispute in this case.

The employer next argued that the plaintiff would have been laid off even if she had not taken maternity leave.   However, the Sixth Circuit easily rejected this argument in light of the evidentiary conflict created by the Human Resources letter and the testimony of the VP of Operations that she had not been laid off due to other positions being available.   Moreover, there was no clear evidence that the plaintiff had ever been informed that she must request a transfer:

It appears that plaintiff knew she could go to the main office to receive a new assignment, Clements Dep. at 116-18, but she did not think that she must go and receive a reassignment. Instead, plaintiff filed for unemployment and apparently wanted to wait for an opening at the New Center complex.

Plaintiff seems to have believed that she had the choice of receiving unemployment benefits or a reassignment with defendant to a different location. This choice is consistent with the approval of an employee of defendant, Danielle Todaro, who signed a letter on the company letterhead stating that plaintiff was “laid off.” She did this so that plaintiff could provide proof to the government unemployment office that no suitable position for plaintiff existed at the company. This letter indicates that defendant apparently approved, or at least allowed, plaintiff to file for unemployment benefits in early July 2009 after plaintiff was told there were no openings at the New Center complex. Defendant is responsible for its agent’s conduct.

Ultimately, the Court faulted the employer for failing to have clear policies or documentation explaining to the plaintiff her responsibilities or rights and failing to document what communications had transpired as required by the FMLA regulations:

These inconsistencies in defendant’s interaction with the plaintiff and the lack of communication led to the confusion about plaintiff’s status with the company. Even a cursory review of the record reveals that defendant had virtually nothing in the way of written policies and procedures for any aspect of its business. Matthew Keywell, vice-president of operations for defendant, described the hierarchy of the reporting system at the company as “kind of loose.”  .  . . Keywell’s deposition testimony reflects that it was impossible to pin him down on explaining any direct chain of command or lines of communication at the company from the guard positions and site supervisors who were located in various buildings and parking lots across the metro Detroit area all the way up through to the “operations managers” who worked in the “main office” as it was called.  . . .  No paperwork of any kind was prepared by Lively, Keywell or anyone in the main office when an employee went on “leave.” Keywell testified that the procedure of instructing employees to inform the main office about leave is not written down anywhere, and there were no forms that an employee who wished to take leave would have filled out.

 . . .

The record is full of inconsistent statements like this by defendant’s employees, and it is unclear whether plaintiff was “laid off” or whether defendant wanted plaintiff to return to work at a location other than New Center. Keywell understates the situation when he explains in his deposition that the defendant’s employment policies were “kind of loose.” It seems that there were no policies. In light of this lack of clarity and the failure of defendant to give its employees notice of how to proceed upon completion of leave under the Act, we do not believe that summary judgment for defendant is appropriate.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

New FMLA Regulations Significantly Modify Employers’ Notice Requirements.

As mentioned in the summaries from last week, the DOL issued new FMLA regulations last Monday which will become effective on January 16, 2009 and will require employers to modify their employment policies, practices employee handbooks. Employers should consult with an employment attorney to revise and/or review their FMLA policies and forms before the new FMLA rules become effective in January. In addition to the new rules mentioned at this site beginning at DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules, the following rules were also revised:

26. §825.300 Employer Notice Requirements. The new regulations consolidate in one regulation all of the significant notice requirements imposed on employers and make a a number of other significant changes.

General Notice. In addition to providing the FMLA general notices in a language understood by a significant number of the non-English-speaking employers, the employer is also now required to provide notices that can be understood by sensory-impaired individuals. The fine for non-compliance has been raised to $110.00. Electronic posting of the FMLA general notice is sufficient to comply with the regulation “as long as it otherwise meets the requirements” of the regulation. “For the posting requirement to be met, however, all employees and applicants for employment must have access to the information. Thus, for example, if an employer has some employees who do not have employer provided computer access or who are not otherwise able to access the information electronically, the employer must post on its premises where it can be readily seen a paper copy of the information contained in the general notice. . . . [Nonetheless], electronic posting does not excuse the employer from the statutory requirement to post in a location viewable by applicants for employment. . . . , if the employer posts such information on an intranet that is not accessible to applicants, additional posting would be necessary in a conspicuous place where notices for applicants for employment are customarily posted.”

Employee Handbooks. The general notice information must be included in the employer’s employee handbook, if any, and if there is no employee handbook, the information must be given to each employee when the employee is hired. “In either case,” the information may be distributed electronically as long as the regulation is complied with (i.e., “that the information is accessible to all employees of the employer, that it is made available to employees not literate in English (if required), and that the information provided includes, at a minimum, all of the information contained in the prototype general notice).” The DOL ultimately decided not to require the information to be distributed annually as previously proposed.

Eligibility Notice. When an employee requests FMLA leave or when the employer learns that an employee’s leave may be for an FMLA reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days absent extenuating circumstances. (This notice is limited to eligibility and does not address whether the employee has qualified for FMLA or has already exhausted FMLA leave). The employee’s eligibility must be determined at the beginning of the first instance of leave for each FMLA-qualifying reason. “All FMLA absences for the same qualifying reason are considered as a single leave and employee eligibility as to that reason for leave does not change during the applicable 12-month period.” Conversely, if the employee needs FMLA leave for a different reason within the twelve months, but the employee’s eligibility status has changed, the employer must notify the employee of the changed status within five business days.” If an employee is not eligible for FMLA leave, the employer’s notice to the employee need only state at least one reason why the employee is not eligible.” In addition, “[n]otification of eligibility may be oral or in writing” and “employers may use” a prototype notice provided in the regulations. This notice, of course, must be translated into a language or format the employee understands. Notably, the DOL has deleted the current requirement that the employer provide such a notice with each request for FMLA leave or every six months because “in many cases, is much less frequent than either with ach FMLA-protected absence or every six months.”

Notice of Obligations. When the employer provides the employee with the eligibility notice, the employer must also “provide written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations” (in a language or format understood by the employee). “If leave has already begun, the notice should be mailed to the employee’s address of record.” When describing the conditions of substituting paid leave, the notice must also specify the employee’s entitlement to take unpaid FMLA leave if the conditions for paid leave are not met. “[A]n employer may meet the requirements of providing information about the conditions related to the substitution of paid leave by reference to existing, employee accessible copies of such policies.” This notice no longer need include any requirement for the employee to present a fitness-for-duty certification following the leave. The notice “may be accompanied by any required certification form,” including the DOL’s prototype notice. If the information changes, the employer must within five days after the next request for leave provide written notice describing and referencing the changed information. Again, this notice may be distributed electronically as previously discussed.

Designation Notice. Once an employer receives enough information (from a medical certification form, etc.) to determine whether a leave qualifies under the FMLA, it “must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances. Only one notice of designation is required for each FMLA-qualifying reason per applicable 12-month period, regardless of whether the leave . . . will be a continuous block of leave or intermittent or reduced schedule leave.” When it designates the leave as qualifying under the FMLA, the employer must also notify the employee if paid leave is to substituted for unpaid FMLA leave or that paid leave taken under an existing leave plan be counted as FMLA leave.” If the designation information changes (i.e., the employee exhausts the FMLA entitlement), the employer must “provide, within five business days of receipt of the employee’s first notice of need for leave subsequent to any change, written notice of the change.” The DOL has eliminated the current concept of “provisional designation” as confusing to employees.

The employer is required to inform the employee “of the amount of leave counted against the employee’s FMLA leave entitlement. If the amount of leave needed is known at the time” of the Designation Notice, “the employer must notify the employee of the number of hours, days, or weeks that will be counted against the employee’s FMLA leave entitlement in the designation notice.” If that is not possible “(such as in the case of unforeseeable intermittent leave), then the employer must provide notice of the amount of leave counted against the employee’s FMLA leave entitlement upon the request by the employee, but no more often than once in a 30-day period and only if leave was taken in that period. The notice of the amount of leave counted against the employee’s FMLA entitlement may be oral or in writing. If such notice is oral, it shall be confirmed in writing, no later than the following payday (unless the payday is less than one week after the oral notice, in which case the notice must be no later than the subsequent payday). Such written notice may be in any form, including a notation on the employee’s pay stub.”

Fitness for Duty. If the employer will be requiring the employee to present a fitness-for-duty certificate from the employee’s doctor upon returning to work, the employer must notify the employee of the requirement in the Designation Notice (unless the requirement is already contained in the employee handbook or other written policies). If the fitness-for-duty certificate requires the physician to address whether the employee can perform the essential duties of the employee’s position, the employer must so indicate in the Designation Notice and must also include a list of the essential functions of the employee’s position. The DOL has also supplied a prototype Designation Notice.

I will continue to summarize additional significant changes in the new FMLA regulations throughout the week on this blog, including at New FMLA Regulations Significantly Change Employee’s Notice Requirements; Calling in Sick and Ignoring Employer’s Policies No Longer Suffices. Until then, eager beavers and insomniacs can read the 201 pages of single-spaced, 9-point font new rules and explanatory comment in full at http://edocket.access.gpo.gov/2008/pdf/E8-26577.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.