In an employee’s Family and Medical Leave Act case, there are various potential avenues to success for an employer. One way an employer can blunt an employee’s case is by establishing that the employee did not follow company policy for reporting his FMLA absences. That’s what happened to one waffle-packaging machine operator in Tennessee, and the employer’s evidence proved to be enough to allow it to obtain summary judgment on the employee’s FMLA claims.
Most employers have specific policies for absences from work, including discipline for excessive absences. The employer facing suit in this case was a major food company that operated a facility in West Tennessee. It had a points-based policy for tracking and disciplining excessive absences from work, but employees didn’t accumulate points if they were on approved FMLA leave. A third-party provider managed the employer’s FMLA program, and the employer required employees taking intermittent FMLA leave to notify the provider within 48 hours of the absence.
This plaintiff had been approved for intermittent leave for a period from October 2013 to April 2014, but he didn’t report a November absence to the provider as required by policy. The same thing happened on three days in December. The employer declared all of these absences unexcused, and the total effect of these unexcused absences was a point total that triggered termination.
The employee sued, accusing the employer of FMLA interference and retaliation. The employer sought and obtained summary judgment on all of the employee’s claims.
On appeal, the employer again won. The employee had on his side the witness testimony of the chief shop steward at the plant where the employee worked, who testified that the employer rushed through the absence discipline process and that the employer had treated other employees less severely. This evidence wasn’t enough because the steward’s testimony was just her own information and belief, and it lacked support from which a court could conclude that she had actual personal knowledge to back up the claims she made.
Another problem the employee had was the applicable federal regulations. The regulations allow employers to deny approval of FMLA leave if employees fail to follow internal reporting policies. This employee didn’t follow the rules for reporting FMLA leave, so the employer was entitled to deny approval of the leave, and that denial could not constitute FMLA interference. Since the leave in question was not approved FMLA leave, that meant that the employee had not “exercised a right under the FMLA for the purposes of his retaliation claim,” which in turn meant that the employee’s FMLA retaliation claim could not go forward.
This case provides a clear example of how having a clear protocol for dealing with employees’ FMLA leave can be potentially beneficial should future litigation arise. For detailed advice about this and other FMLA issues, whether you’re an employer or an employee, look to the skilled Tennessee FMLA attorneys at Mays & Kerr. Our team offers our clients all of these things. Our attorneys can help you better understand what is changing in the law and what all of that means for you.
To speak with one of our lawyers about your case, call 1-877-986-5529.
More blog posts:
Employer’s Extra Demands of Worker Seeking FMLA Leave Allow Interference Case to Proceed, Atlanta Employment Attorneys Blog, March 8, 2017
Alert to Tennessee Employers: Errors in Your Employee Manuals Can Cost You When it Comes to FMLA Litigation, Atlanta Employment Attorneys Blog, Nov. 18, 2015