Failing to Clarify Maternity Leave Also FMLA Leave Results in Triable Issue on Interference Claim
August 21, 2017
Denying an employer's motion to dismiss a discharged employee’s Family and Medical Leave Act (FMLA) interference claims, a federal district court in New York found triable issues on whether her employer’s inadequate FMLA notices resulted in her inability to structure her leave for childbirth so as to successfully return to her job, particularly given her obvious confusion over whether maternity leave and FMLA ran concurrently, the employer’s failure to answer her questions, and the lack of guidance in its policies.
Handbook provisions on leave. The employee was hired by FX in 2007 and it was undisputed her performance was consistently excellent. The employee handbook contained a section titled "Family and Medical Leave" which stated that, as required by the FMLA, the employer would grant 12 weeks of unpaid leave for specified reasons, including the birth of a son or daughter. The section asked employees to provide at least 30 days’ notice. There was also a separate section on "Maternity Leave," stating it would be treated in the same manner as disability leave and "all full-time regular employees will receive their full wages for a period not to exceed eight weeks. You may also choose an additional four weeks of unpaid maternity leave." The handbook did not state whether FMLA and maternity leave run concurrently or consecutively.
Employee’s leave. In 2014, the employee learned she was pregnant and due in November. She emailed the only HR employee with the subject line "Maternity Leave," stating her due date and she wanted to use her "remaining 19 days of vacation followed by maternity leave" around her due date. In October, she emailed asking to start her "time off/maternity leave" on November 3. Her supervisor approved her request and her leave started October 30, two days early.
Confusion over whether FMLA, maternity leave concurrent. The HR rep was not trained on the employer’s maternity or FMLA policies, but testified that, based on her "assumption from previous employers" and on what a former benefits manager at the parent company told her, she thought the two types of leave ran concurrently. However, the employer’s VP of finance (who was the HR rep’s supervisor) testified that she thought they ran consecutively and an employee could request unpaid FMLA leave after using maternity leave.
Employee requests leave. It was undisputed that, after her request for "maternity leave," neither the HR rep nor anyone else gave the employee FMLA paperwork or notices, nor was she notified in emails or any other writing that her leave would be designated FMLA leave. The employer also did not specify a return date until well after her child’s birth. On January 8, 2015, the HR rep emailed to state "[t]he last day of your 12 weeks is February 12, 2015 and we are happy to have you back on February 13th!" The email did not refer to the FMLA. Though the employee had recovered and could have returned, she sent a January 20 email stating: "I would like to use 12 weeks of FMLA unpaid leave to care for my new born. . . . Please treat this email as an application to use Federal FMLA to care for my newborn starting Feb 16th for a period of 12 weeks after. Please let me know if you have any questions."
The HR rep forwarded her FMLA request to her supervisor stating "I believe she is confused—I will clarify that her 12 weeks began the day her baby was born." However, no such response was sent. The HR rep purportedly didn’t know she had the responsibility to advise the employee in writing whether her FMLA request was approved or denied. The employee claimed she could have returned February 13, but she didn’t hear anything despite February 9 and 11 follow-up emails asking for "updates" on her FMLA request and multiple voicemails to HR.
Termination. Over two months after her FMLA request, the HR rep emailed the employee on March 31 asking her phone number. They spoke on April 1 and the HR rep said they needed her to return that week. The employee was "shocked" because she thought she had until May 11. The parties disputed whether she was told she wasn’t on FMLA leave. On April 9, the HR rep emailed to say the employee only had 12 weeks of leave total. She was told to return on Monday, giving her one business day to prepare. It was unclear if she received that email and she had periodically been locked out of the email system. She called on April 16 to say she was ready to return, but she had already been terminated in a letter she received the next day by express mail.
Triable issues on FMLA interference. Denying both parties’ motions for summary judgment, the court found that the employee’s notice of her intent to take FMLA-qualifying leave well over 30 days in advance was adequate. Under regulations, the employer had to notify her within five business days of her eligibility for FMLA leave but it provided no such notice. Nor was there any indication that HR or anyone else referred to her leave as FMLA leave. The employer’s reliance on a conspicuously displayed FMLA poster (which several workers testified they never saw) was misplaced because that would only fulfill the "general notice" requirement, not individualized notice requirements. Nor did the handbook satisfy individual notice requirements.
Furthermore, FMLA regulations require employers to responsively answer employees’ questions on their FMLA rights and responsibilities. Here, having received the employee’s January 20 email request for FMLA leave beginning February 16, it was undisputed that the employer failed to reply for more than two months, despite her obvious confusion and follow-up emails.
In sum, the court found multiple triable issues on whether the employer’s numerous notice failures prejudiced the employee and ultimately caused her to lose her job. There were also triable issues on whether she was prepared to return to work as directed and whether the employer attempted to communicate with her between January and April 2015. Viewed in a light favorable to the employer, she ignored multiple attempts to reach her by phone and email, and she knew she needed to return the week of the April 1 phone call. Viewed favorably to the employee, however, she did not receive the required FMLA notices; she reached out to her employer several times while on leave but received no response or specific return date; and the employer’s failures prevented her from making an informed decision to structure her leave in a manner that would ensure her successful return to work.