Requiring Employee to Work While on FMLA: Bad idea. Duh.

Darrell VanDeusen
Darrell VanDeusen

I have been updating my book on the FMLA/Wage & Hour Law (available through LexisNexis).  But enough gratuitous self-promotion.  The point is that in doing so I get to read a whole mess of recent FMLA decisions.  A few of them make me shake my head at the decision-making skills of some members of our species.  I share one of those with you, dear reader.

It would seem self-evident, but employers sometimes forget that the concept of leave means that the employee should “leave” the work behind. When an employer expects an employee on FMLA leave to perform his or her job, problems arise. 

A decade ago, the Seventh Circuit held in Lewis v. School District #70, 523 F.3d 730 (7th Cir. 2008), that a school system’s demotion of a bookkeeper while she was on intermittent leave – because she did not perform her job acceptably while on leave – could be evidence of retaliatory behavior and it reversed the district court’s entry of summary judgment for the employer.

King v. Sawran, 2018 U.S. Dist. LEXIS 199885 (S.D. Fla. 2018), is a recent case with a similarly troubling fact pattern — at least as described by the court reviewing the parties’ cross motions for summary judgment (with facts that support the often less-than stellar-reputation of working for a law firm).  It should also be noted that the court found the facts “hotly contested” in denying both motions. 

King was an attorney employed by McIntosh, Sawran & Cartaya, P.A.  She took leave in December 2017 to care for her ailing father.  According to King, this was a law firm where “attorneys were expected to be available 24/7 no matter the circumstances. . . .”  Two days into her FMLA leave, a firm partner began to request that King respond to emails and provide support in drafting “EXIT Memos” for work she did for a client that had recently left the firm – a departure the partners apparently blamed on King because of (allegedly) a “distasteful comment she purportedly made in a meeting with the client some months before[.]”

Dissatisfied with King’s alleged non-responsiveness while she was on FMLA leave, the partner sent an email to a fellow partner commenting that he ‘“underst[ood] family emergencies’ but Plaintiff was ‘not doing much legal work[.]’”  There was more of this same sort of contact with King, even while her father was going into surgery. 

The law firm contended that it merely wanted King to pass along institutional knowledge to others, not engage in substantive legal work.  In a light most favorable to the defendant firm, it “was losing its, and Plaintiff’s, most important client, [and] Plaintiff’s need to ‘field[] occasional calls’ about the crisis could be viewed simply as “‘a professional courtesy.’”  Right.

On the other hand, reminded the court, ‘“[t]he ability to take FMLA leave is not conditioned upon the willingness of the employee to remain ‘on call’ to the employer. . . . Of the many prerequisites to FMLA leave, the convenience of the employer is not one. Here, the multiple emails and phone calls outlined above could be found to be more than ‘de minimis contacts.’ . . .  A reasonable jury could find that by ‘impress[ing] upon her the urgency’ of drafting ‘EXIT Memos’ on all of the lost client’s cases – in other words, the majority of Plaintiff’s caseload – Defendant was ‘essentially requiring Plaintiff to work while on leave.’. . . Indeed, Plaintiff’s supervising partner said as much himself, stating that he had explicitly asked Plaintiff to “work remotely” while she was off caring for her father.

The takeaway seems obvious here.  No, not the one about not working somewhere that doesn’t appreciate the need to balance workplace and family.  Rather, employers should NOT require employees on FMLA leave to perform work while on leave.  Even as a “professional courtesy.”

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