- Employment Law Update: The FMLA does not impose strict liability for all interferences with FMLA rights.
- May 26, 2005
- Law Firm: Dickie, McCamey & Chilcote, P.C. - Pittsburgh Office
The Family and Medical Leave Act provides to eligible employees a total of 12 weeks of unpaid leave due to, among other things, a serious health condition that makes the employee unable to perform the functions of his or her position. The provisions of the FMLA and the regulations that support that Act secure an employee's right to reinstatement of employment and benefits at the completion of a leave. Violation of these provisions and regulations by an employer allows an employee to proceed against the company under an "interference theory" for which the employee may be entitled to damages. However, in a recent decision, the 8th U.S. Circuit Court of Appeals states that an employer may not be liable under such a theory if it can show that it would have made the same decision had the employee not exercised his or her FMLA rights. Throneberry v. McGehee Desha County Hosp., 8th Cir., No. 03-3822, Apr. 11, 2005.
Sandra Throneberry began working with McGehee Desha County Hospital in 1988 as a staff home health nurse. For ten years, she received above-average employment evaluations and was given increased responsibility. In 1998, her mental and emotional health deteriorated after a divorce and after the death of her father, and her job performance began to suffer. In August of that year, Throneberry's supervisor recommended that Throneberry take a month's paid leave of absence to "get herself together."
During the month of leave, Throneberry continued to appear at the workplace, acting inappropriately, disruptively, and in a sexually provocative manner. Throneberry was then asked to resign her employment and agreed that her resignation would become effective after an additional paid leave of absence. Although she ultimately resigned, Throneberry said that she would have continued her employment had she realized that she may have been entitled to additional FMLA leave.
After Throneberry's resignation, the Hospital found that during her employment Throneberry had ignored certain business-related correspondence and had billed Medicaid for services without proper documentation. The Hospital was required to pay nearly $40,000 because of Throneberry's work-related mistakes. Based on these issues, the Hospital stated that had these facts come to light prior to the resignation, Throneberry would have been fired.
Throneberry subsequently sued the Hospital, alleging that the Hospital had interfered with her FMLA rights. At trial, the jury found in Throneberry's favor on the interference claim. However, the jury also responded positively to written questions that asked whether the Hospital had proven that it would have fired Throneberry regardless of her exercise of FMLA rights. Based upon those responses, the district court entered judgment in the Hospital's favor on the interference claim. Throneberry appealed that decision.
The 8th Circuit upheld the judgment against Throneberry, holding that an employer who interferes with an employee's FMLA rights will not be liable if the employer can prove that it would have made that same decision had the employee not exercised FMLA rights. The Court found that the FMLA "simply does not force an employer to retain an employee on FMLA leave when the employer would not have retained the employee had the employee not been on FMLA leave."
As this decision makes clear, no employee taking FMLA leave is entitled to any right, benefit, or employment position other than those to which the employee otherwise would have been entitled had the employee not taken the leave. The FMLA does not create additional substantive employment rights. However, employers must recognize that the employer has the burden of proving that any action taken against the employee would have been taken regardless of the FMLA leave. That issue, coupled with the fact that an employee can prove interference with an FMLA right regardless of the employer's intent to violate the Act, means that employers must be careful to document the incidents that form the basis of any adverse employment action against an individual on FMLA leave and must fully consider the consequences of the action in light of the possibility of an interference claim.