This is a story about the potential consequences of not properly training supervisors as to FMLA rights and obligations. It is a long and detailed story, but the details are necessary to understand how the court came to its decision. It is also an important story because ultimately the court determined not only that the employer violated the FMLA but that its violation was willful and therefore awarded liquidated damages, which essentially amounts to extra punishment for bad behavior.
The employee was employed by CHD as a direct care worker at a group home where she was responsible for caring for residents with mental impairments. She was hospitalized in April 2013 for several days due to mental health issues that arose suddenly. The employee’s son called CHD and spoke to a friend who worked there to ask who he should inform of his mother’s treatment and resulting absences. He was given the name of the on-site supervisor, whom he called. He advised CHD that his mother was hospitalized and very sick. He reported he was uncertain when she would return to work. The supervisor told him to have the employee call when she was able to do so. The son also talked with the employee’s direct supervisor and reported that she was in the hospital and could not come to work.
In total, he called and reported her condition and updates at least four times that week. One of the individuals he spoke to was in the HR department. That person had “limited” FMLA training. She provided him with short term disability paperwork as well as FMLA paperwork, including FMLA guidelines. The forms acknowledged that CHD had been informed that the employee was on a medical leave of absence due to a non-work related illness.
While the employee was still hospitalized, one of the supervisors told the employee’s son it was “not acceptable for him to call CHD instead of his mother” and told him “not to call again.” She directed him to have the employee obtain a medical certificate from the hospital but did not ask further questions about the employee’s condition.
Then, on April 22, the supervisor notified the VP of HR that the employee violated CHD’s no call/no show policy by being absent from work on April 19, 20, and 21 without personally notifying CHD of her absence as its call-in policy required. They took the position that the employee abandoned her job and voluntarily resigned and then sent her a termination letter. Neither of the supervisors who were aware of the situation told the VP of HR who made the decision to terminate that the employee has been hospitalized.
The employee was released from the hospital on April 24. The next day, during an appointment with her PCP, the doctor faxed a certificate to CHD indicating that the employee neededa leave of absence from April 23 to May 23 and could return to her full duties on May 24. The employee went to CHD’s HR department after her medical appointment where sh completed and signed the disability forms and FMLA paperwork. She also provided CHD with a physician’s statement indicating that she had been hospitalized.
There was no dispute that the employee cooperated with CHD by providing all of the information it requested.
When the employee called the HR department to notify her that she would be returning to work, she was told she needed to talk with her supervisor about her violation of the no call/no show policy. When she went to work to sign the short term disability paperwork, the VP of HR notified her that she had abandoned her job by failing to call to report her absences.
The VP did not seek any clarification or additional information about the circumstances of her absence from work or the FMLA leave she had requested through her physician’s statement. During the first week of May, the employee received a letter from her supervisor notifying her of her termination from employment with CHD as of April 21, 2013.
It would be an understatement to say that the employer violated the FMLA. In addition to the other damages available under the FMLA, an employer can be liable for liquidated damages where it ‘”either knew or showed reckless disregard for the matter of whether its conduct was prohibited by statute”.
In this case, the court affirmed the jury’s verdict against the employer in the amount of approximately $142,000. It then assessed the potential for additional liquidated damages. It first confirmed the basics of the FMLA: a family member is permitted to provide notice if the employee is unable to do so personally; when the employee’s need for FMLA leave is unforeseeable, she is excused from complying with the employer’s “usual and customary notice and procedural requirements for leave” if she is unable to use the phone; and an employer is required to “inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken.” 29 C.F.R. § 825.302(c).
The court determined that CHD failed to show it acted in good faith or with reasonable grounds to believe it was in compliance with the FMLA. In doing so, it noted that CHD failed to show that it “made any effort to fulfill [its] duty to investigate whether the FMLA or its regulations required Plaintiff to comply with their call-in policy, which required employees to call to report their absences unless they were ‘physically unable to do so,’ and whether the notices that [the employee’s son] provided were adequate.”
The Court also found the fact that the VP of HR, who made termination decision, had little FMLA training was further evidence of the employer’s lack of good faith. Finally, it found that CHD’s failure to reconsider its decision to terminate employment after the employee complied with the regulations “as soon as practicable” requirement was evidence of a failure to act in good faith.
Specifically, the day after the employee was discharged, she provided CHD with proof of her inpatient hospitalization and her physician’s certificate indicating that she could return to her full duties in a month and, a few days later, she told the VP of HR that she intended to return to work.
However, CHD did not ask her why she had not personally notified CHD about her absences and need for leave and did not reexamine their decision to terminate employment. The Court found that “[a]s soon as practicable under the circumstances, Plaintiff cooperated in all respects in providing CHD the information it needed to ascertain that she could not personally have called CHD while she was in the hospital, and was delusional, confused, and experiencing seizures.”
Based on these facts, the Court found that CHD did not show it acted in good faith and with objective reasonableness because it “failed to ascertain whether [it] acted in conformance
with the dictates of the FMLA before terminating Plaintiff, who [it] knew had been hospitalized
for days, and for failing to reconsider [its] decision when [it] could, with no trouble, have determined the basis for Plaintiff’s reinstatement.”
For those reasons, the Court awarded liquidated damages of $142,000 plus interest – essentially doubling the employee’s award.
One of the primary lessons to take from this case is about failure to train supervisors and managers in the FMLA’s application, requirements, and obligations. There were errors made at almost every step, from a basic understanding of the FMLA’s application, to failure to obtain additional information, to misinformation given to the employee’s son about reporting the leave, to what information to share with senior management. The failure to adequately train those supervisors and managers was a large part of the reason the award to the employee was doubled by the award of liquidated damages.
The case is also a good reminder of when to revisit a decision upon the receipt of further information. The employer did not reconsider the termination even after learning of the hospitalization and the fact that she was not able to communicate in a timely manner. Had it done so, that may have limited the liquidated damage award.
The coming of a New Year is always a good time to reevaluate training practices. If your managers and supervisors do not adequately understand the general rules of the FMLA, now is the time to be sure that is rectified.
