Verizon Can’t Place State Retaliatory Discharge Claim on Hold

The United States District Court for the Southern District of West Virginia recently ruled that a Verizon employee who alleged his employer denied him leave under the federal Family and Medical Leave Act (FMLA) and then fired him can pursue his state law claim for retaliatory discharge. In Vandevander v. Verizon Wireless, LLC, No. 3: 15-cv-11540 (S.D.W.Va., March 7, 2016), the federal district court denied Verizon’s motion to dismiss, finding that the state claim was not preempted by the FMLA.
Justin Vandevander, a Verizon employee since 2007, wanted to visit his pregnant fiancé in the hospital and to care for his teenage son, who suffered from several medical conditions. Vandevander alleged that Verizon did not notify him of his eligibility for FMLA leave; instead, he contends that the company told him to use his vacation time. Vandevander claimed he would have used FMLA leave several times during 2015 to care for his son, but Verizon either refused to grant leave or failed to inform him that FMLA leave was available. After Verizon terminated him without providing any reason, Vandevander sued for retaliation under federal and state theories —retaliation in violation of the FMLA and common law retaliatory discharge in violation of West Virginia public policy.
Verizon argued that the FMLA should preempt the state retaliatory discharge claim because the underlying facts supporting Vandevander’s claims were identical. The Court rejected this argument, noting that the plain text of the FMLA and its legislative history indicate that the statute is not intended to preempt state law claims. More crucially, the Court underscored that the intention of the FMLA is to protect employees who use leave. Because Verizon’s alleged failure to notify Vandevander of his eligibility contravenes this public policy, he may seek remedies under West Virginia law. Under the surviving state claim, Vandevander may awarded damages that are not provided for under the FMLA explicitly, such as punitive damages.
Several jurisdictions similarly have held that the FMLA does not preempt state law claims. Because state law claims generally  are based in tort theories, employers may find themselves exposed to claims alleging punitive and compensatory damages that are not available under the FMLA.