Category: FMLA

The DOL’s FMLA Regulations are pretty clear on when you can take action against an employee for failing to provide medical certification. Section 825.305(d) provides that: “At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification.” 29 C.F.R. § 825.305(d). FedEx recently learned the hard – and expensive – way from...

The Eighth Circuit has held that a public employee could not proceed with her claim under the Family and Medical Leave Act (FMLA) because she was on the personal staff of an elected official. Hemminghaus v. Missouri, 2014 U.S. App. LEXIS 12376 (8th Cir. July 1, 2014).   This decision follows a recent unpublished Sixth Circuit decision in Horen v. Cook, 2013 U.S. App. LEXIS 20737 (6th Cir. Oct. 10. 2013) and a 2005 decision from the Fifth Circuit in...

Employers often cringe when they think about taking a case to a jury.   Even if the facts are good for the company, juries are notoriously unpredictable and sometimes follow sympathies rather than legal reasoning. That, of course, is one reason why appellate review exists. A recent decision from the Eleventh Circuit provides a case study of the issue in the context of a company executive’s claim of a Family and Medical Leave Act (FMLA) violation...

Employers who decide to fire an employee for a work rule violation usually feel pretty secure in the decision when the employee has admitted to the infraction. But it is important to remember that, in discrimination or retaliation cases, the real question is “how has the employer treated other employees in similar circumstances?” The need to focus on this “similarly situated” factor, as well as the possible “bad facts” in a case, was...

The Family and Medical Leave Act (FMLA) grants eligible employees the right to take job protected leave.  An employer that denies an employee such rights may be faced with an FMLA “interference” claim.  The FMLA also precludes employers from discriminating or retaliating against employees for exercising those rights, and employers must defend against such “retaliation” claims as well. In the typical retaliation case, an employee subject to...

In Hansen v. Fincantieri Marine Group, LLC, (E.D. Wis. June 14, 2013), the employee suffered from depression and had  episodic flare-ups that prevented him from working.  He was approved for intermittent FMLA leave based on his  certification from his health care provider which advised the employee may experience “about four episodes every six months” and which would incapacitate him “two to five days per episode.” Within the first two...