The Family and Medical Leave Act (FMLA) turned 20 this year, with enforcement first taking effect on August 5, 1993. Sure, the FMLA is a “burden” on employers in the same way that weekends, lunch breaks, and the minimum wage are a “burden,” but it’s hard to argue with the basic precept that employees who work 1,250 hours a year at a company with the resources to handle employees calling out shouldn’t be entitled to a little bit of unpaid time off when they’re too sick to work or when they need to be good spouses, children, and parents by caring for their immediate family members.


But there’s always someone to complain about people doing the right thing instead of grinding themselves down making money for a big company. Thus, there’s been no shortage of complaints by begrumpled management-side lawyers about the “Friday-Monday Leave Act.” The Department of Labor looked into these concerns and found them mostly unfounded — few employees ever take out intermittent leave for self-care conditions like chronic pain, and few business can credibly report a loss in productivity or profitability — but that hasn’t stopped calls to weaken the FMLA.


I don’t tend to litigate FMLA cases, but I most certainly need Continuing Legal Education credits to remain a licensed attorney, so last week I went to a seminar on the FMLA hosted by a bunch of defense lawyers and, the lone employee-side lawyer, Ari Karpf of Karpf & Karpf out in Bensalem. What struck me most was how many employers just plain didn’t get it, and didn’t seem to recognize when they were doing something prohibited by the FMLA. So, as part of my real continuing legal education — i.e., reading up on new cases and discussing the law with other attorneys, instead of just sitting through a PowerPoint in a subzero, windowless conference room — I thought I’d do a brief survey of some recent FMLA cases to see how well businesses are doing in actually complying with the law.


In Branch v. Schostak Bros. & Co., 2013 U.S. Dist. LEXIS 70227 (E.D. Mich. 2013), plaintiff worked at a company’s that describes itself as “currently operat[ing] commercial properties in 19 states as a full-service real estate development, management, leasing and consulting company.” To quote the Court, “On September 11, 2007, Plaintiff underwent hernia surgery and returned to work on October 29, 2007.” When he returned, his supervisor “would make embarrassing remarks about his health in front of others when he had to leave a meeting to use the restroom or because he walked with a limp.” Two years later, “On October 16, 2009, Plaintiff underwent emergency gallbladder surgery and was again granted FMLA leave from October 15, 2009, to November 6, 2009. During the same year, Plaintiff was also diagnosed with Crohn’s disease.” His supervisor “was upset with him for taking medical leave and told him ‘you left me hanging again.’ He explained that the surgery was not planned; her response was ‘you keep taking too much time off work for your medical issues.’” The supervisor further made references in front of their contractors that the plaintiff went to the bathroom too frequently, and that he shouldn’t eat lunch because of his digestive issues.


Schostak Bros. fired him a little more than a year later, and he sued under the FMLA and the ADA. As the Court said in denying the employer’s motion for summary judgment, “Defendants contend that Plaintiff’s responsibilities were reduced and he was terminated as a result of poor performance. However, Plaintiff has provided ample evidence that [his supervisor] took a negative view of Plaintiff’s medical leaves and health issues. Although [the supervisor] documented Plaintiff’s allegedly poor performance, the evidence creates an issue of fact as to whether the performance issues raised were legitimate or manufactured to create a ‘paper trial’ in support of Plaintiff’s termination.” Id.


A supervisor at a major company with operations in 19 states thinks it’s fine to tell their employee, “you keep taking too much time off work for your medical issues?” That, however, seems to be a trend these days, according to the CLE, with an increasing number of “dissuasion” FMLA claims. For example, in Brown v. Lassiter-Ware, Inc., 2013 U.S. Dist. LEXIS 116375, at *54–55 (M.D. Fla. Aug. 16, 2013), the Court “found merit in Plaintiff’s argument that [the employer] discouraged him from taking a one-month leave of absence” by telling him to “push through” a severe case of Epstein-Barr that his doctor said warranted a month of recovery.


Sometimes, like with Fair Labor Standards Act lawsuits, the case boils down to funny math. In Chaney v. Eberspaecher N. Am., No. Case No. 12-13023, 2013 U.S. Dist. LEXIS 94534 (E.D. Mich. July 8, 2013), the plaintiff developed a work-related shoulder injury and had to have surgery in March 2011. As the Court recounts, “On May 2, 2011, approximately seven weeks after returning to work, Plaintiff complained of pain in her injured shoulder and left work early to see her doctor.” Her doctor says: don’t work for the next two days, so she calls out and doesn’t work. You can imagine what happened next:


In deposition testimony, [the human resources manager] acknowledged that Plaintiff provided the requisite documentation to certify the absences as medically excused for the purposes of workmen’s compensation and the FMLA. [The HR manager] further testified that she understood that the May 3 and May 4 absences were ‘related to Plaintiff’s shoulder injury… and that they were related to Plaintiff’s workmen’s comp issue.’ Nevertheless, Defendant assessed Plaintiff two attendance points for her May 3 and May 4 absences.


(Internal citations and court edits omitted.) What a great place to work: first they hurt you, then they write you up when the doctor tells you to stay home two days to get better. Over the next five months, the employee collects three more absences and so is fired.


But the best part comes from the employer’s lawyers trying to justify this later. That’s where the funny math comes in: plaintiff was denied FMLA leave on May 3 and May 4, then terminated on October 21, 2011. As the Court recounts, “Defendant maintains that FMLA leave was appropriately denied for Plaintiff’s May 3 and May 4 absences because she did not have any available FMLA leave at the time,” even though, “Counting back one year from May 3, 2011, the Court counts 252 hours of FMLA leave used by Plaintiff. Under the FMLA, an employee is entitled to 480 hours of leave. 480 initial FMLA hours less 252 used FMLA hours leaves Plaintiff with 228 hours of FMLA leave.”


So how on earth do they come up with the argument that the employee didn’t have any more FMLA leave? “Defendant insists that the appropriate rolling twelve-month period for calculating Plaintiff’s available FMLA leave is October 21, 2010 through October 21, 2011.” Yet, “The dispute in this case, however, concerns the denial of FMLA leave on May 3 and May 4, 2011.” It’s like when banks reorder deposits and withdrawals to create overdraft fees; if you don’t like the actual chronology of events, just reorder events to make it fit your argument.


But that’s not all! The suit also alleged the employee didn’t give the company notice that she was taking FMLA leave: “Defendant makes much of the fact the Plaintiff did not fill out the proper paperwork to request FMLA leave and that she did not call in to notify anyone of her unforeseen absences.” Sounds reasonable enough, until you see her response: “Defendant’s human resources manager, testified that she understood that Plaintiff was attempting to exercise her FMLA rights and that Plaintiff not only called Defendant’s ‘call-in’ line, but that Plaintiff called her personally. Ms. Lipan is on record as stating that she told Plaintiff the FMLA time was not available (there’s that funny math).” Oh. The Court’s conclusion is fair: Under those circumstances, and drawing inferences with regard to Defendant being on notice of Plaintiff’s need for FMLA leave in her favor, the absence of a formal FMLA request – what ultimately amounts to a piece of paper – is not fatal to Plaintiff’s FMLA interference claim.”


Then there’s Wegelin v. Reading Hosp. & Med. Ctr., 909 F. Supp. 2d 421, 423 (E.D. Pa. 2012), one of the cases presented at the seminar. It begins: “This action brought under the Family and Medical Leave Act (‘FMLA’) presents the question whether a parent of a special needs child is entitled to FMLA leave to make suitable arrangements for the care of her child.” How is that even a question? Wasn’t that the point of the FMLA? Doesn’t the Act begin by saying Congress finds “it is important for the development of children and the family unit that fathers and mothers be able to participate in early childrearing and the care of family members who have serious health conditions” and that the purpose of the Act is “to entitle employees to take reasonable leave … for the care of a child, spouse, or parent who has a serious health condition?”


Yet, at Reading Hospital, this issue was apparently worthy of dispute. The plaintiff, a technician’s assistant, has an elementary school age child with “pervasive developmental disorder (“PDD”) and congenital blindness in one eye” who requires special education and who cannot be left alone. Here’s what happened:


Wegelin was assigned to the Spruce Street parking garage, which was within walking distance to her job location. After she used a purloined parking pass to park at a parking garage that was closer to her department location, Wegelin was disciplined, resulting in the reassignment of her parking space to a remote parking lot, which required her to take a shuttle. Due to the additional time needed to get to her car, she contends that she was unable to get to Bowmansville to pick up her daughter before the daycare closed. Thus, Wegelin needed to change Carolyn’s daycare center to one that would be open until 6:00 p.m.


On January 18, 2010, Wegelin had a scheduled day off. She did not report to work the rest of the week because she was looking for a daycare center that could take care of Carolyn with her special needs. It is undisputed that she notified her supervisor that she needed time off to find a new daycare. On January 21, 2010, Wegelin was told that she would be allowed to utilize her paid time off for the week of January 18 through 22, 2010, but she was expected to return to work on January 25, 2010. When Wegelin did not report to work on January 25, Reading Hospital terminated her employment.


Charming, huh? She misused a parking pass one day, so they punished her by moving her to an even farther parking lot, which made it impossible to pick up her disabled child on time, then refused to grant her FMLA leave so she could get the child set up at a daycare with better hours. Thankfully, the Court recognized that finding child care at the drop of a hat for a seriously disabled child was, indeed, “the care of family members who have serious health conditions,” and so the plaintiff was entitled to FMLA leave. To wit, “[The child] has a chronic serious health condition resulting in an inability to perform regular daily activities and Wegelin had to make arrangements to find a suitable daycare that could care for her.”


Sounds simple when you say it that way — because it is simple.


I could go on. The point remains: it seems we have a while to go before employers realize that, in many cases, the right thing to do is also required by law.