Employment & Labor Insider

I hope everyone had a good Thanksgiving. A recent decision involving the Family and Medical Leave Act should give employers much to be thankful for.

Is this a mixed metaphor, or what?

Our employee (we’ll call her “Patti”) managed telecommunications services for her employers’ international clients. She seems to have done very well – so well that she was eventually given some clients in the United States.

How can I say this tactfully? After Patti was given the U.S. clients, she continued to do a great job with her international clients.

She was counseled on several occasions about her not-so-hot performance with respect to the U.S. clients and asked whether she was “keeping up” with one very major U.S. client during contract renegotiations. Her supervisor allegedly mentioned her “lack of focus.” Later that same year, the mega-client and two other U.S. clients terminated their relationship with the employer.

While a lot of this was going on, Patti took a grand total of eight and a half days of intermittent FMLA leave. In a year. All but one day was for her daughter’s serious health condition. The other day was for her to take her mother to the eye doctor for macular degeneration. Both of these leaves were clearly covered by the FMLA under the “chronic condition” provision. Here’s an excerpt from a U.S. Department of Labor Fact Sheet discussing the “chronic condition” provision:

A chronic condition is one that requires periodic visits to a health care provider, or a nurse supervised by the provider, at least twice a year, and which includes periods of incapacity that recur over an extended period. A chronic condition may cause short periods of incapacity. An employee can be incapacitated due to a chronic condition even though he or she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days.

Examples:

Ghalen occasionally needs 30 to 40 minutes of FMLA leave before reporting to work when he needs to give his 10-year-old daughter, who has asthma, a breathing treatment.

Andrea uses FMLA leave for two to three days every few months to care for her spouse when her spouse has Multiple Sclerosis flare-ups.

Raffiel uses FMLA leave to attend outpatient treatment for his mood disorder.

(Italics in original.)

Anyway, according to the court, the employer granted all of Patti’s requests for FMLA leave. The leave was not mentioned in any of Patti’s performance-related counselings, although Patti said that she believed that the “lack of focus” comment was a reference to her daughter’s medical condition.

But here's where things got a little sticky for the employer:

The time off for Patti’s mom’s eye appointment was on February 12. Twelve days later, the employer terminated Patti’s employment, allegedly because of the loss of the three U.S. clients.

Not surprisingly, Patti sued for FMLA interference and retaliation. (She also asserted some claims under New York law, but we’ll put those aside because the court declined to rule on them.)

Perhaps more surprisingly, a federal judge in New York granted summary judgment to the employer, and a bipartisan panel of the U.S. Court of Appeals for the Second Circuit affirmed. The panel consisted of one George W. Bush appointee, one Obama appointee, and one Trump appointee. (So, “tri-partisan”?)

I say the Second Circuit decision was surprising, but it really was not. See whether you agree.

Gems from the court

The Ruby: “Feelings” aren’t enough. Even though the employer granted all of Patti’s FMLA leave requests and never mentioned her leave in the meetings about her performance, Patti claimed that the counselings made her feel pressured not to take the leave. But the court noted that an employee’s subjective feelings are not in themselves enough to establish a valid claim.

The Sapphire: FMLA notices are not the be-all and end-all. Employers should certainly do their best to comply with the FMLA written notice requirements. However, an employer can still win an FMLA case without providing the notices. The U.S. Supreme Court resolved this issue 23 years ago, ruling that a failure to provide FMLA notices was not an issue if the lack of notice did not prejudice the employee. An employee might be prejudiced by a lack of notice if he or she didn’t know to take leave, or prematurely exhausted the leave.

In the Supreme Court case, the employee didn’t get FMLA notices but did get 30 weeks of job-protected leave. For those of you -- like me -- who can't do math, that's 18 weeks more than the FMLA maximum allotment. (I used my calculator, so I'm pretty sure this is right.)

In Patti’s case, the employer granted all of her leave requests -- with pay! -- but apparently didn’t give her all of the required notices. She contended that this was unlawful interference.

The Second Circuit panel, applying the Supreme Court decision, found that the employer’s failure to provide the notices did not support Patti’s interference claim. No prejudice.

"You're out of the woods, you're out of the dark, you're out of the night . . ."

The Emerald: Ninety-nine times out of a hundred*, if your employer thinks you’re doing a lousy job, legally speaking you are doing a lousy job. The employer said that Patti was doing a lousy job with U.S. clients. Patti disagreed, and said that her contrary opinion was enough to get her FMLA retaliation claim to a jury. But the court correctly noted that her personal opinion was not relevant.

            *Not an actual statistic.

One caution here. There is still that one time out of a hundred* where the employer’s concerns are fabricated, or so outlandish that they might as well have been. The “Emerald” rule applies to verifiable, legitimate, and preferably documented performance issues.

            *Also not an actual statistic.

Not an actual diamond. Oh, wait. 

The Diamond: Timing is everything. Remember when I said that Patti was terminated only 12 days after her last day of intermittent FMLA leave? That’s bad, right? Pretty strong evidence of retaliation? But the other 7 1/2 days of Patti’s FMLA leave had been taken months before the termination. And her performance issues were first addressed months before her first FMLA leave. And the employer’s performance-related feedback had been consistent the whole time -- before, during, and after the FMLA leave.

What does this tell you? Don’t dawdle in addressing legitimate performance or behavior issues. If you address them when they occur, you’ll have a much better chance of defending yourself against any retaliation claim that ensues.

BONUS: The Pearl of Wisdom. Like this employer, be sure you have documentation to prove that you administered those prior counselings when you say you did. Since timing is everything and stuff.

Completely off topic: Happy holidays! ‘Tis the season for workplace parties, with all of the risks those entail. Here are some posts from Christmases past that address how employers can avoid having their festive occasions turn into discrimination charges and lawsuits. Stay sane and sober, y’all!

A note from Santa about workplace holiday parties

Workplace holiday party quiz!

Second-guessing the advice columns: The morning after the workplace party 

Six easy ways to keep your workplace holiday party -- without a lawsuit

Is your cornucopia runnething* over yet?

*Not an actual word.