Employment Law Blog

FMLA Retaliation Cases

FMLA retaliation cases are potent weapons that can flip the balance of power in favor of employees.   Employees can really stand up for themselves and recover good settlements.   This video explains why these cases are so powerful for employees and bad for employers. You can also read a transcript of the video below: Hi, I’m Robert Ottinger. I’m an employment lawyer with the Ottinger Firm and we represent executives and employees. Now I’m here today with my dog Lake to talk about one of my favorite kinds of employment cases and they’re called FMLA retaliation cases and these cases are dynamite for employees and nightmares for employers. Now, what exactly is an FMLA retaliation case, you may be wondering? Well, the FMLA, as you may know means Family Medical Leave Act. And this law’s there to give people the right to take a little bit of time off if they’re sick or if maybe one of their close relatives like your mom or dad or your spouse or your child is sick. It gives you the right to take some time off and deal with that. Some companies though, they don’t want to be bothered. If they have an employee who’s sick themselves or has a sick relative and they need time off, they just fire the person. It happens a lot. So that’s the core of FMLA retaliation. So, now why are these cases so great? Why are they one of my favorite kinds of cases? Well there’s a few reasons. First of all, the law creates a presumption of guilt for a company that fires an employee while out on FMLA leave or within 90 days of returning from FMLA leave. Now that’s incredible. That means if you’re fired while you’re on leave or soon after you return from leave, the law assumes the company fired you because you were out on FMLA leave. That’s incredible. The burden shifts at that point back to the company and they have to sort of come up with a good reason to explain why they really fired you. The second reason why they’re so strong, why they’re so great, is that unlike almost all other federal employment law cases out there, with an FMLA case you don’t have to file first with the Equal Employment Opportunity Commission. That’s a real hassle. It’s a, kind of a worthless, procedural hurdle that’s there for most all of their federal employment cases. But no so with the FMLA. You can file a lawsuit against your company immediately and this gives you a lot of power. You can actually pose a real threat to a company that fires you if you’re out for out on FMLA leave. Now with these two things, the fact that there’s a presumption of guilt and the power to file a case immediately, it puts the ball in your court. Because if those things happen to you, if you’re fired while out on leave or soon after you return, your case is so simple. All you have to prove is that you were fired while out on leave or soon after you returned. Once you prove those two things, and they’re not in dispute. There’s never a dispute about a person being on FMLA leave or not, or that they were fired. They’re uncontested. So right off the bat, the burden shifts to the company. Now they have to explain why they fired a person while they’re out sick or caring for sick relatives. And how does that make the company look? I mean why in the world would a company have to fire someone while their sick, or while their mom is sick, or while their dad is sick, or their child is sick? It’s a terrible thing for a company to do. And so they have to explain to a jury why they did this terrible thing. And they have to, they better have a really good reason for it. It better not be linked at all to your leave. Otherwise, they’re guilty. And finally with the FMLA, if you prove that this happened, the companies are required to pay you two times what you lost. That’s statutory required double damages. If you get fired and you lose $50,000, the company has to give you $100,000 and they have to pay all your legal fees. So these cases are nightmares for employers. So if this has happened to you, if you’ve been fired while you’re out on FMLA leave, or soon after you return, you might have a great case. And by the way, when you’re, if you go out on leave, you don’t have to ask for FMLA leave. You don’t have, no one’s required to say that. All you have to do is say, hey look. I’m sick or my mom’s sick. I want some time off. That’s it. You don’t have to even mention the words FMLA. So don’t be worried about that. So anyway, if you want to know a little bit more about who’s protected by the FMLA we have other videos that explain that. But that’s it in a nutshell, those cases are dynamite, and because they’re so strong, most people who are in that situation can settle their cases fast without ever going to court, because most companies don’t want to deal with that. They’d rather pay up early, put it behind them, and hopefully learn a lesson and not fire the next person that goes on FMLA leave. Until next time, I’m Robert Ottinger

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Employment Law Blog

Fired on FMLA: The Story of Rodney Jones

The Family Medical Leave Act was created to give employees time off to care for themselves or close family members.   Rodney Jones needed time off for surgery but he wound up getting fired.   Technically an employee is free to do what they want on FMLA leave, but posting photographs of yourself on the beach while on leave can create the wrong impression.   Here is Rodney’s story.   What follows is a transcript of the video. It’s really easy to suspect that an employee is abusing family and medical leave if they post pictures of themselves on a tropical vacation on Facebook, but the reality is that people go on leave for different reasons and not everyone has to be home on their recovery couch. The recent 11th Circuit decision in Jones versus Gulf Coast Healthcare provides a thoughtful and thorough review of some of the key provisions of the Family and Medical Leave Act, including a situation involving a vacationing employee. This is Rodney Jones, the plaintiff. He was the activities director for a nursing home called Accentia operated by Gulf Coast Health. He worked there for 15 years before getting fired in January 2015, whose job involved physical work, like picking up patients out of bed, unloading patients from an equipment from vehicles, shopping for supplies, and setting up events around the community. He described himself as a hands-on guy who was physically involved in his work. Jones needed a shoulder surgery in 2014 to repair a torn rotator cuff. Jones took three months of FMLA leave to recover, but at the end of this period he still wasn’t able to perform the physical parts of his job and didn’t have a certification for duty from his doctor. Accentia refused to reinstate him but gave him another 30 days to recover. While on this new extended leave, Jones went to St. Barts, vacation on the beach for a few days, and also visited a local amusement park a few times. While on these trips, Jones took photographs of himself and posted them on Facebook. Some of his Facebook friends were colleagues at work and his images circulated around and made its way to his supervisor. When Jones finally returned to work, he had a fitness for duty certification, he was able to perform the essential functions of his job and he was ready to go, but his employer wasn’t ready for him because they’d seen those pictures of him on Facebook and they thought he was abusing their leave policies and they fired him. Jones sued Accentia under the Family and Medical Leave Act for interference and retaliation. Accentia, though, got the case thrown out on summary judgment. Jones then appealed to the 11th Circuit and they recently issued an opinion that covered both of these claims. Let’s take a look. FMLA interference occurs whenever a company interferes that employee’s rights under the FMLA. Jones claimed that Accentia interfered with his right to return to his position at the end of his FMLA period, but their Court of Appeals didn’t buy that argument because Jones didn’t have the right to return to his job at the end of his FMLA period because he wasn’t capable of performing the essential functions of his job then. He still couldn’t perform the physical part of his job, therefore, he didn’t have the right to return to his job at the end of his FMLA period and Accentia couldn’t have interfered with something that didn’t exist, and therefore, that claim was bounced. Next, the Court addressed Jones’ retaliation claim. FMLA retaliation occurs whenever an employer takes adverse action against an employee for exercising the rights under that law. Here, Jones claims that Accentia fired him for taking FMLA leave. The Court of Appeals focused on the issue of retaliatory intent in this case because Rodney Jones didn’t have any direct evidence that Accentia fired him for taking FMLA leave. In fact, Accentia denied doing that, so there was really no direct evidence at all. But Mr. Jones wasn’t out of luck because in retaliation cases the Court will create a presumption of retaliatory intent whenever something called temporal proximity exists, and that’s just a fancy word for saying that the firing or adverse action occurred close in time to the exercise of his rights under the FMLA. And here, since Mr. Jones was fired right after he returned from FMLA leave, the Court applied that presumption and held that the case did have merit and sent it back to the Trial Court for further proceedings. So, Mr. Jones’ case actually didn’t get dismissed in its entirety and it will continue on another day in the trial court below, and we’ll watch it to see what happens. So, what are the key takeaways from the Jones case? First, there’s no reinstatement for an employee on FMLA leave unless that employee can perform the essential functions of the job at the end of the leave period. Two, an employer can require an employee to obtain a fitness for duty certification from their doctor before they return to work. Temporal proximity can create a presumption of retaliatory intent in an FMLA retaliation case. And finally, even though this wasn’t in the decision itself, employees out there who are on FMLA leave, on vacation, or having good time definitely should not be posting pictures of that on their Facebook pages. That’s the end of this video, I hope you enjoyed it, and thanks for watching.

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