Family and Medical Leave Act

Third Circuit Court of Appeals Holds That Supervisors May Be Subject to Individual Liability Under the FMLA

March 29, 2012

By Subhash Viswanathan

The Third Circuit Court of Appeals recently held, in Haybarger v. Lawrence County Adult Probation and Parole, that supervisors may be subject to individual liability under the Family and Medical Leave Act ("FMLA").  Although this Third Circuit decision is not binding on U.S. District Courts in New York or the Second Circuit Court of Appeals, the decision potentially opens the door for plaintiffs in FMLA cases filed in New York to name individual supervisors as defendants in their lawsuits.

In Haybarger, the plaintiff, Debra Haybarger, was an office manager for Lawrence County Adult Probation and Parole.  Ms. Haybarger's supervisor was William Mancino, the Director of Probation and Parole.  Ms. Haybarger had Type II diabetes, heart disease, and kidney problems, which constituted serious health conditions under the FMLA and caused her to miss work frequently to seek medical attention.  Mr. Mancino allegedly expressed dissatisfaction with Ms. Haybarger's absences and wrote on her performance evaluation that Ms. Haybarger needed "[t]o improve her overall health and cut down on the days that she misses due to illness."  On March 23, 2004, Mr. Mancino placed Ms. Haybarger on a six-month probationary period due to alleged performance problems, and subsequently recommended the termination of Ms. Haybarger's employment.  Ms. Haybarger's employment was terminated on October 4, 2004.

After her discharge from employment, Ms. Haybarger filed a lawsuit against Lawrence County Adult Probation and Parole and Mr. Mancino.  Part of her lawsuit included a claim against Mr. Mancino in his individual capacity for an alleged violation of her rights under the FMLA.  The U.S. District Court for the District of New Jersey granted summary judgment to Mr. Mancino with respect to the FMLA claim against him in his individual capacity, but the Third Circuit reversed and remanded the case back to the District Court.

The Third Circuit examined the definition of "employer" under the FMLA, which includes "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer."  The Third Circuit also reviewed the Department of Labor's regulations implementing the FMLA, which provide that "individuals such as corporate officers 'acting in the interest of an employer' are individually liable for any violations of the requirements of FMLA."  Based on the text of the statute and the regulations, the Third Circuit concluded that "liability for FMLA violations may be imposed upon an individual person who would not otherwise be regarded as the plaintiff's 'employer.'"  Although the employer at issue in the Haybarger case was a public agency, the Third Circuit's analysis appears to apply equally to individual supervisors at private employers as well.

The Third Circuit also held that there was a genuine dispute of material fact regarding whether Mr. Mancino exercised sufficient authority over Ms. Haybarger's employment to qualify as an "employer" under the FMLA, and remanded the case back to the District Court for a jury trial.  The Third Circuit applied an "economic reality" test to determine whether a reasonable jury could determine that Mr. Mancino qualified as Ms. Haybarger's employer under the FMLA.  Citing to a Second Circuit Court of Appeals case in the context of a Fair Labor Standards Act ("FLSA") claim, the Third Circuit examined the following factors in applying the "economic reality" test:  (1) whether the individual had the power to hire and fire the employee; (2) whether the individual supervised and controlled employee work schedules or conditions of employment; (3) whether the individual determined the rate and method of payment; and (4) whether the individual maintained employment records.  Based on these factors, the Third Circuit concluded that a reasonable jury could find that Mr. Mancino acted as Ms. Haybarger's employer under the FMLA.

Employers in New York should be aware that plaintiffs who allege a violation of their FMLA rights may name individual supervisors as defendants in their lawsuits.  Employers should take this opportunity to train their supervisors regarding their obligations under the FMLA.  Employers should also remind their supervisors that their actions could result not only in liability for the employer, but also potentially in liability for themselves.

DOL's "Updated" FMLA Forms List New 2015 Expiration Date

February 19, 2012

By Kerry W. Langan

The U.S. Department of Labor ("DOL") recently issued "updated" Family and Medical Leave Act ("FMLA") model notices and medical certification forms.  The prior notices and forms expired on December 31, 2011, but employers may now use the following DOL model notices and forms through February 28, 2015:

At this time, it does not appear as though the DOL has made any substantive changes to these model FMLA forms.  In fact, the only modification that seems to have been incorporated by the DOL and the Office of Management and Budget ("OMB") is the new 2015 expiration date.  These forms do not address important changes that have occurred since the FMLA was amended in November 2008.  Specifically, these forms do not incorporate changes brought about by the 2010 amendments pertaining to military family leave (i.e., changes in exigency leave, the inquiry of a servicemember's past military service given the expanded definition of a "covered servicemember," etc.).

In addition, the DOL's forms do not contain the proposed "safe harbor" language that employers should insert on particular FMLA medical certification forms (e.g., WH-380-E) in order to avoid the disclosure of genetic information under the Genetic Information Nondisclosure Act of 2008 ("GINA").  In our January 14, 2011 blog post, we issued a reminder that employers may inadvertently obtain genetic information when they request that health care providers complete certification forms to support a leave under the FMLA or an accommodation request under the Americans with Disabilities Act ("ADA").  The GINA regulations, however, created a safe harbor for employers who integrate specific language (which is set forth in our January 14, 2011 blog post) into their requests for medical information in order to certify an employee's own serious health condition under the FMLA.  In light of the fact that the DOL's FMLA model forms have not been amended to incorporate the GINA safe harbor language, we continue to recommend that employers take their own proactive measures to add and/or use the GINA safe harbor language when requesting medical information to certify an employee's own serious health condition under the FMLA.

It is entirely possible that the DOL will propose and/or make substantive changes to the FMLA model forms prior to February 2015, particularly because the DOL published its proposed changes to the FMLA regulations on February 15, 2012.  The proposed changes to the regulations address topics such as military family leave, calculation of leave usage, and FMLA eligibility for flight crews.  In the meantime, employers are encouraged to use the most recent published version of the FMLA model forms and to include any appropriate modifications needed to afford themselves protection under GINA's safe harbor provisions.

U.S. Department of Labor Releases Three Fact Sheets Regarding Retaliation

January 29, 2012

By Katherine R. Schafer

Recently, the U.S. Department of Labor's Wage and Hour Division released three new Fact Sheets on unlawful retaliation under the Fair Labor Standards Act ("FLSA"), the Family and Medical Leave Act ("FMLA"), and the Migrant and Seasonal Agricultural Worker Protection Act ("MSPA").  Although the Fact Sheets do not contain any new information on the prohibition against retaliation, they provide a good reminder to employers regarding the scope of the anti-retaliation provisions in these three statutes.

Fact Sheet #77A provides general information concerning the FLSA's prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation.  The Fact Sheet reminds employers that an employee who files a complaint under the FLSA is protected from retaliation regardless of whether the complaint was made orally or in writing.  The Fact Sheet also states that the anti-retaliation provision of the FLSA applies even in situations where there is no current employment relationship; for example, former employees are also protected from retaliation.  The Fact Sheet further indicates that complaints made to the Wage and Hour Division are protected and that "most courts have ruled that internal complaints to an employer are also protected."

Fact Sheet #77B provides general information concerning the FMLA's prohibition of retaliation against an individual for exercising his or her rights protected under the FMLA.  The Fact Sheet provides examples of prohibited conduct, which include:  discouraging an employee from using FMLA leave, manipulating an employee's work hours to avoid responsibilities under the FMLA, and counting FMLA leave as absences under "no fault" attendance policies.

Fact Sheet #77C provides general information concerning the MSPA's prohibition of discrimination against a migrant or seasonal agricultural worker who has filed a complaint or participated in any proceeding under the MSPA.  The MSPA applies to agricultural employers, agricultural associations, and farm labor contractors who engage in at least one of the following activities:  furnishing, employing, soliciting, hiring, or transporting one or more migrant or seasonal agricultural workers.

Equitable Estoppel and the FMLA

September 17, 2010

By Caroline M. Westover

A recent decision from the United States Court of Appeals for the Eighth Circuit raises an interesting issue: can an employer be held liable for interference with FMLA rights if it discharges an employee after giving the employee reason to believe FMLA leave has been approved -- even if the employee is not in fact entitled to FMLA leave? In Murphy v. FedEx National LTL, Inc., the Court held that an employer could be liable, if the employee reasonably believes she has been granted FMLA leave and if she has put her employer on notice that she may need FMLA leave.

The following facts are taken from the Court’s opinion. Susan Murphy and her husband worked as truck drivers for FedEx. Ms. Murphy requested FMLA leave to care for her hospitalized husband, which was approved on August 31, 2006. On September 7, 2006, her husband died. Ms. Murphy called to notify her supervisor and to inquire about specific employee and bereavement-related benefits. Her supervisor offered to obtain the information for her because she was upset. Ms. Murphy remained out of work for three days on bereavement leave provided by FedEx.

Ms. Murphy’s supervisor spoke with her again on September 11, 2006, to inform her that her FMLA leave had expired on September 7. He also asked Ms. Murphy when she would return to work. She replied that she needed thirty days to “take care of things.” The supervisor then stated, “okay, cool, not a problem, I’ll let HR know.” The two had no further discussions regarding her leave request, nor did Ms. Murphy contact FedEx to seek any additional approval regarding the leave of absence. At trial, Ms. Murphy testified that following her husband’s death, she experienced difficulty sleeping and functioning, and she cried frequently. She also acknowledged that she did not notify FedEx that she was experiencing these symptoms. On September 12, her supervisor contacted the Human Resources Department and relayed Ms. Murphy’s request for a 30-day leave of absence to “put her affairs in order.” FedEx denied the leave request, and on September 15, the supervisor contacted Ms. Murphy to notify her that FedEx was terminating her employment. Ms. Murphy subsequently sued FedEx, claiming that FedEx interfered with her FMLA rights by denying her leave request and ending the employment relationship.

One of Murphy’s legal theories was equitable estoppel; that FedEx interfered with Murphy’s FMLA rights by representing that it had granted her leave, inducing her reasonable reliance on that representation and later terminating her. On that claim, the District Court rejected FedEx’s proposed jury instruction that would have required the jury to find, among other things, that Murphy had a serious health condition and had put FedEx on notice that she potentially had such a condition. The jury returned a verdict in favor of Ms. Murphy on the equitable estoppel claim.

On appeal, the Eighth Circuit found that the District Court erred when it gave the jury instructions on the equitable estoppel claim. Specifically, the Court of Appeals found that, while an employee need not actually have a serious health condition to prevail on an estoppel theory, the employee still bears the responsibility of adhering to the FMLA’s notice requirements, including providing the employer with information sufficient to indicate the requested leave may be FMLA protected. Simply stated: “[b]efore an employee can claim FMLA protection, whether through estoppel, waiver, or otherwise, the employee must put the statute in play – she must notify her employer that she may need FMLA leave… .”

Finally, the Court noted that on retrial, Murphy has to prove that she “reasonably believed,” FedEx approved her request for thirty days as FMLA leave, rather than “some other type of leave.” The Court noted that while vague representations by the employer are not sufficient, the employer does not have to mention the FMLA to create a reasonable belief. Consequently, employers should be aware that even simple affirmations of a leave request (i.e., okay, cool, not a problem, etc.) may be sufficient to support a claim of equitable estoppel.

USDOL Interprets FMLA to Apply to Domestic Partners, Grandparents, and Other Individuals Providing Day-to-Day Care for Children

July 1, 2010

By Kseniya Premo

Recently the U.S. Department of Labor’s Wage and Hour Division issued an Administrator’s Interpretation (the “Interpretation”) clarifying the definition of “son or daughter” under Section 101(12) of the Family Medical Leave Act (“FMLA”) as it applies to an employee standing “in loco parentis” to a child. The FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period to care for a child after adoption or birth, or to care for a child with a serious health condition. The Interpretation concludes that these rights extend to any individual who assumes the role of caring for a child, regardless of the legal or biological relationship.

The definition of a “son or daughter” under the FMLA includes not only a biological or adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” According to the Interpretation, the legislative intent behind this definition was to reflect the reality that often the day-to-day responsibility of caring for a child falls to someone without a biological or legal relationship to the child, and that employees with such a responsibility are therefore entitled to leave under the FMLA.

In loco parentis, or “in the place of a parent,” is commonly understood to mean a person who has assumed obligations typical of a parent without formally adopting the child. Courts have routinely looked to the intent of the person allegedly in loco parentis to determine whether such a relationship is established; such intent is inferred from the acts of the parties. Whether an employee stands in loco parentis depends on multiple factors such as the age of the child, the child’s dependence on the employee, the amount of support provided and to what extent the employee performs duties commonly associated with parenthood.

Although FMLA regulations define persons standing in loco parentis as including those with day-to-day responsibilities to care for and financially support a child, the Interpretation views the regulations as not requiring an employee to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis. In addition, the Interpretation makes special note that neither the statute or the regulations restrict the number of parents a child may have under the FMLA. Although an employer may require the employee to provide reasonable documentation of the family relationship, a simple statement asserting that the requisite relationship exists is sufficient.

Examples of situations in which an in loco parentis relationship may be found include:

  • A grandparent assuming ongoing responsibility for a grandchild due to the parents’ incapacity;
  • An aunt assuming responsibility for raising a child after the death of the child’s parents; and
  • A person sharing in the raising his or her unmarried partner’s biological child.


Federal Appeals Court Concludes Performance-Based Demotion Does Not Violate the FMLA

April 28, 2010

By Subhash Viswanathan

A recent case decided by the United States Court of Appeals for the Eleventh Circuit serves as a helpful reminder that an employee is not immune from performance-based discipline just because the employee has taken leave protected by the Family and Medical Leave Act (“FMLA”). Earlier this month, in Schaaf v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, the Eleventh Circuit held that the demotion of a female vice president returning from maternity leave did not violate the FMLA because her demotion stemmed not from taking FMLA leave, but rather from performance issues which the employer learned about during her absence.

According to the Court’s written opinion, the plaintiff, Ellen Schaaf, worked for GlaxoSmithKline (“GSK”) as a Regional Vice President. In 2003, she took FMLA leave for the birth of her child. While on maternity leave, Schaaf’s subordinates reported to GSK’s management that Schaaf’s region was performing significantly better in her absence. Overall, productivity increased, communication improved, and morale was markedly higher as well.

Also according to the Court’s opinion, when Schaaf returned to work, GSK told her that she could accept a demotion to District Sales Manager – the position she held prior to her promotion to the position of Regional Vice President – or she could leave the company. Schaaf ultimately accepted the demotion. GSK explained that its decision was based on complaints from Schaaf’s subordinates regarding her aggressive management style and the fact that Schaaf’s region performed significantly better when she was out on leave. Schaaf sued GSK, alleging: (1) interference with her FMLA rights; and (2) a claim of retaliation for exercising her FMLA rights.

To state an FMLA interference claim, an individual need only allege that she was denied a benefit to which she was entitled under the statute. Schaaf claimed that her FMLA reinstatement rights were denied when GSK refused to reinstate her to the Regional Vice President position following her return from maternity leave. GSK contended that Schaaf was not returned to her position due to performance-related concerns. Schaaf countered by arguing that because GSK learned of the performance issues during her maternity leave, the leave, in effect, caused her demotion. In other words, but for Schaaf taking maternity leave, she would not have been demoted. The Court rejected that argument, explaining that Schaaf was demoted because of managerial ineffectiveness discovered while she was on FMLA leave, not because she took FMLA leave.

With respect to her retaliation claim, the Court found Schaaf could establish a prima facie case of retaliation based on the timing of the demotion, which occurred very shortly after the leave. However, GSK met its burden of proof by articulating a legitimate, nondiscriminatory reason for the adverse employment action – namely Schaaf’s managerial ineffectiveness coupled with a noticeable improvement in performance from Schaaf’s region during her absence. Because Schaaf was unable to demonstrate that GSK’s stated reasons for her demotion were a pretext for discrimination, the Court dismissed Schaaf’s retaliation claim.

Schaaf serves as a reminder that an individual who has taken FMLA leave is not insulated from disciplinary action, or other performance-based decisions, simply because that individual has taken protected leave. Nevertheless, employers should be cautious and conservative when taking such actions. An adverse employment action following a protected leave will be suspect, and can enable the employee to establish a prima facie case based on timing alone. In particular, employers should not act without well-documented proof of the performance problems, and should not treat the FMLA-protected employee less favorably than a non-FMLA-using employee who exhibits similar performance problems.

New Legislation Expands FMLA Leave Provisions Related to Members of the Military

December 9, 2009

By Kerry W. Langan

The recently enacted National Defense Authorization Act for Fiscal Year 2010 amends the Family and Medical Leave Act (“FMLA”), by expanding the availability of “military caregiver leave” and “qualifying exigency leave.” The legislation does not include an effective date, so it is prudent for employers to adjust their workplace practices and policies now in order to comply with the new law. The coverage expansions are explained below.

Military Caregiver Leave Expanded to Cover Certain Veterans

The FMLA provides that eligible employees may take up to 26 weeks of job-protected leave in a single 12-month period to care for a “covered servicemember” with a serious injury or illness. The term “covered servicemember” was defined as a member of the Armed Forces, including a member of the National Guard or the Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. The new law expands the definition of “covered servicemember” to include veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness and who were members of the Armed Forces, including the National Guard or the Reserves, at any time during the five years preceding the date on which the veteran undergoes such treatment, recuperation or therapy.

Military Caregiver Leave Expanded to Cover Preexisting Injuries

As noted above, the FMLA’s military caregiver leave provisions require that the covered servicemember have a “serious injury or illness.” Pre-amendment, the “serious injury or illness” must have been incurred in the line of duty on active duty in the Armed Forces. The recent amendments expand this definition to include illnesses or injuries that existed prior to the beginning of the covered servicemember’s active duty and were aggravated by service in the line of duty on active duty. With respect to a veteran who was previously a member of the Armed Forces, including the National Guard or the Reserves, a “serious injury or illness” is defined as “a qualifying injury or illness” that was incurred in the line of duty, or aggravated by service in the line of duty while on active duty in the Armed Forces and that manifested itself before or after the individual became a veteran.

Qualifying Exigency Leave Expanded to Cover Members of the Regular Armed Forces

The FMLA also provides eligible employees with up to 12 weeks of job-protected leave in a single 12-month period for a “qualifying exigency.” Until the most recent amendments, “qualifying exigency” leave was limited to eligible family members of individuals serving in the National Guard or Reserves. The most recent amendments expand the scope of “qualifying exigency” leave to include active-duty members in the regular Armed Forces. The covered military member must be on “covered active duty.” For servicemembers in a regular component of the Armed Forces, “covered active duty” means duty during deployment to a foreign country. For members of the National Guard or Reserves, it means deployment to a foreign country under a call or order to active duty.

The Secretary of Labor, in consultation with the Secretary of Defense and the Secretary of Veterans Affairs, is responsible for issuing regulations to implement the most recent amendments. It is not certain when those regulations will be issued.


Basic Elements of an Effective FMLA Leave Response Process

August 6, 2009

By Kerry W. Langan

The task of handling leave requests pursuant to the Family and Medical Leave Act (“FMLA”) became more formalized earlier this year when the U.S. Department of Labor’s (“DOL ”) revised FMLA regulations took effect on January 16, 2009. Those regulations provide greater clarity for employers with respect to the processing of FMLA leave requests, but in doing so, they impose strict time limits for communicating with employees who have requested leave, and require employers to provide particular types of information to employees who have made the requests.  Employers should set up a regularized leave response process that ensures compliance with both the timing and notice content requirements of the new regulations. This blog provides a very basic summary of some of the regulations’ notice provisions to assist employers in developing a leave response process. At a minimum, an effective response process should include the following elements:


1. If the designated FMLA representative is out for an extended period of time, assign another employee to monitor FMLA leave requests until the designated representative returns to work. In addition, make sure that employees are aware that another individual has been temporarily assigned responsibility for FMLA requests.

2. Once an FMLA request has been made, or you have knowledge that an employee’s leave may be for an FMLA-qualifying reason, determine whether the employee is eligible for FMLA leave. For example, determine whether the employee:

  • worked for the employer for 12 months;
  • worked for 1,250 hours;
  • works at a site with 50 or more employees within 75-miles; and
  • has an FMLA-qualifying condition (if you can).

3. Notify the employee regarding eligibility within five days, and provide a notice describing the employee’s rights and responsibilities under the FMLA (e.g., employee benefits during leave, substitution of paid for unpaid leave, providing medical certification, reinstatement, etc.). While the “Notice of Eligibility” may be oral, the “Notice of Rights & Responsibilities” must be in writing and contain particular types of information. A sample form  that combines the two notices is available from DOL.

4. In many circumstances, the employee will have to provide medical certification to support the leave request. Offer the appropriate medical certification form to the employee at the time the “Notice of Eligibility” and “Notice of Rights & Responsibilities” are provided, unless, of course, the employee is not eligible. Different certification forms  are used depending on the reason leave is requested (e.g., serious health condition of employee or family member, military leave exigency, or service member's illness or injury).  The employee has 15 days to return the medical certification form, unless the employee is unable to do so, despite the employee’s good faith efforts.

5. When the medical certification is returned, review the documentation to make sure that it is complete. If the form is incomplete or insufficient (e.g., the information provided is vague, ambiguous, or non-responsive), advise the employee in writing of the additional information necessary to complete the medical certification form. The employee must be given at least seven calendar days to cure any deficiency. Also inform the employee of the potential consequences for failing to providing adequate medical certification (i.e., denial of FMLA coverage until sufficient medical documentation is provided).

6. Once sufficient documentation is received, determine whether the employee is requesting and/or taking leave for an FMLA-qualifying reason, and issue a “Designation Notice” regarding the leave within five business days. This notice must be provided even if the employer has determined that the leave will not be designated as FMLA-qualifying. The notice must provide the employee with several pieces of information, including, but not limited to:

  • the number of hours counted against the individual’s leave entitlement, if known;
  • whether the employer will require substitution of paid leave time;
  • whether the employee has requested use of paid time during the leave;
  • whether second and/or third medical opinions are being sought; and
  • whether a fitness-for-duty certification will be required before the employee returns to work.

The Designation Notice may be given at the same time as the Eligibility Notice, if the employer has sufficient information to do so when it provides the Eligibility Notice.

7. Use a tickler system to set reminders or track due dates for when specific notices need to be provided and when employee information is due.

The new regulations are extensive and complex. The basics described above are not a complete statement of an employer’s FMLA obligations, but are intended only to provide very general guidance on some of the regulation’s notice provisions.