• Employer Can Fire Worker Who Refused FMLA Leave for Violating No-Show Policy, Federal Court Rules
  • March 26, 2014
  • Law Firm: Jackson Lewis P.C. - White Plains Office
  • An employer did not violate the federal Family and Medical Leave Act for terminating an employee for violating its no-show, no-call policy, where the employee elected not to take protected FMLA leave, even though the reason for the employee’s need for time off would have been covered under the statute, the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, has ruled. Escriba v. Foster Poultry Farms, Inc., Nos. 11-17608 & 12-15320 (9th Cir. Feb. 25, 2014). Affirming a judgment in favor of the employer on the employee’s claim for interference with her FMLA rights and rights under California law, the Court also ruled the district court did not err in admitting evidence about the plaintiff’s prior FMLA leave.


    Maria Escriba worked for Foster Poultry Farms, Inc., for 18 years until her termination for failing to comply with the company’s three-day “no-show, no-call rule” after the end of an approved period of leave.

    On November 19, 2007, Escriba asked her supervisor, Linda Mendoza, for time off to visit her sick father in Guatemala. Escriba specifically requested vacation time, not leave under the FMLA. On November 21st, Mendoza met with Escriba again to review her plans for leave. Another Foster Farms supervisor, Alfonso Flores, also attended to serve as Spanish interpreter to ensure Escriba understood the parameters of the leave. Flores asked Escriba twice whether she needed additional, unpaid time to care for her father in Guatemala. Escriba responded, “No,” to each inquiry.

    Thereafter, Mendoza completed the paperwork granting Escriba two weeks’ vacation and instructed Escriba to speak with Human Resources if she required additional leave to care for her father. Escriba left for vacation on November 23, 2007, and was scheduled to return to work on December 10, 2007. She did not return to work and did not contact the company to request additional leave. The company terminated Escriba’s employment for failing to comply with its no-show, no-call policy. Under this policy, an employee is automatically terminated if he or she is absent for a period of three work days without notifying the company or without seeking a leave of absence. Escriba subsequently sued Foster Farms for interference with her rights under the FMLA and California law.

    Under the company’s employee-leave policy, an employee who requests FMLA-protected leave must exhaust paid vacation time. The initial paid leave runs concurrently, counting against the employee’s balance of vacation time and FMLA-protected leave. Thus, by first exhausting paid vacation time, an employee would preserve the balance of all available FMLA time.

    The jury returned a verdict in favor of Foster Farms. Escriba appealed.

    Applicable Law

    To make out a prima facie case of FMLA interference, an employee must establish that:

    • he was eligible for the FMLA’s protections;
    • his employer was covered by the FMLA;
    • he was entitled to leave under the FMLA;
    • he provided sufficient notice of his intent to take leave; and
    • his employer denied him FMLA benefits to which he was entitled.

    Worker Can Decline to Use FMLA Leave

    Escriba argued the employer was required to designate her vacation as protected FMLA leave, regardless of whether she declined such leave. The appellate court disagreed. The Court noted that Escriba’s version of the law was inconsistent with the FMLA’s regulations, which provide that an employee need not specifically invoke the FMLA’s protection. 29 C.F.R. 825.302(c). The Court found the regulation “strongly suggest[ed]” employees might choose not to exercise their rights under the FMLA. It also noted that, if employers required employees to take FMLA leave simply because they referenced an FMLA-qualifying reason, employers could be subject to liability for forcing FMLA leave on an unwilling employee. Consequently, the Court concluded that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”

    In this case, substantial evidence supported the jury’s verdict that Escriba chose not to designate her leave as FMLA-protected. She requested vacation to visit her father in Guatemala and specifically denied seeking FMLA leave at least twice. She also had sought and obtained FMLA leave on 15 prior occasions, which strongly suggested she knew how to request and obtain such leave. Further, the Court noted that, because the company’s policy on concurrently running of FMLA leave and vacation time, Escriba may have purposefully declined FMLA leave so she could preserve the full 12-week FMLA entitlement for later use. Accordingly, the Court concluded sufficient evidence supported the jury’s verdict and affirmed the judgment in favor of the company.


    While at first glance Escriba may seem to be a positive, commonsensical development for employers, it actually raises a significant issue about leave administration. The Ninth Circuit’s analysis suggests employees may be able to reject an employer’s designation of time off from work as FMLA-qualifying leave. If so, an employee seemingly could refuse FMLA leave when the employee has available paid vacation time or sick leave, and then request an additional 12 weeks of unpaid FMLA leave, thereby extending the time off. Such a result would seem inconsistent with an employer’s obligation under the FMLA regulations to designate qualifying time off as FMLA leave and to substitute paid leave for all or part of the unpaid FMLA leave period, which would run concurrently.