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The Wagner Law Group

The Wagner Law Group is a nationally recognized practice in the areas of ERISA and employee benefits, estate planning, employment, labor and human resources and  investment management.



Established in 1996, The Wagner Law Group is dedicated to the highest standards of integrity, excellence and thought leadership and is considered to be amongst the nation's premier ERISA and employee benefits law firms. The firm has six offices across the country, providing unparalleled legal advice to its clients, including large, small and nonprofit corporations as well as individuals and government entities worldwide. The Wagner Law Group's 27 attorneys, senior benefits consultant and three paralegals combine many years of experience in their fields of practice with a variety of backgrounds. Seven of the attorneys are AV-rated by Martindale-Hubbell and six are Fellows of the American College of Employee Benefits Counsel, an invitation-only organization of nationally recognized employee benefits lawyers.  Seven of the firm's attorneys have been named to the prestigious Super Lawyers list for 2016, which highlights outstanding lawyers based on a rigorous selection process.




Contact Info

The Wagner Law Group


  Integrity | Excellence



Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110


Washington, D.C.

Tel: (202) 969-2800

  Fax: (202) 969-2568

800 Connecticut Ave., N.W.

Suite 810

Washington, D.C. 20006


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Tel: (561) 293-3590
Fax: (561) 293-3591
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Palm Beach Gardens, FL 33418



Tel: (813) 603-2959

Fax: (813) 603-2961

101 East Kennedy Boulevard

Suite 2140
Tampa, FL  33602 


San Francisco

Tel: (415) 625-0002

Fax: (415) 358-8300

300 Montgomery Street

Suite 600

San Francisco, CA 94104


St. Louis

Tel: (314) 236-0065

Fax: (314) 236-5743
25 W. Moody Avenue
St. Louis, MO  63119







June 1, 2017


 Health and Welfare Law Alert




Court Determines Employer Not Required to Notify Employee of FMLA Rights





The Tenth Circuit Court of Appeals has ruled, in Branham v. Delta Airlines, that FMLA does not require an employer to notify an employee who may be eligible for FMLA leave about her rights thereunder if the employee has previously requested, and taken, multiple FMLA leaves.


Law. In general, FMLA requires a covered employer to notify an employee of his or her FMLA rights when the employee provides enough information to demonstrate that he or she may be eligible for FMLA leave. The FMLA regulations provide that when an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under FMLA, or even mention FMLA, to trigger the employer's obligation to provide notice about FMLA rights.


Background. In Branham, the plaintiff entered alcohol treatment after she tested positive for having more alcohol in her system than company rules allowed. After taking FMLA leave to undergo alcohol treatment, the employee was reinstated to full-time employment.


Following the employee's FMLA leave for alcohol treatment, she contacted the employer about four hours before a scheduled shift to provide notice that she would be absent because she was caring for her sick mother. The employer's absence policy, however, required employees to notify the employer five hours before the start of their shift it they are going to be absent. The employee, however, did not specifically request FMLA leave in connection with the immediate absence.


The employer responded by terminating the employee because of her failure to meet its five-hour deadline for providing notice of an absence. The employee, in turn, sued the employer claiming that it had violated FMLA by failing to notify her that she might be eligible for FMLA leave to care for her ill mother.


Tenth Circuit. In reviewing the matter, the Tenth Circuit acknowledged that if an employer "is on notice that an employee might qualify for FMLA benefits, the employer has a duty to notify the employee that FMLA coverage may apply." However, the court noted that, in this case, the employer's failure to provide the employee with notice of FMLA rights was not problematic. Specifically, the court determined that because the employee had already requested and received FMLA leave multiple times during her tenure with the employer, she was already aware of her FMLA rights. In addition, regardless of her FMLA rights, her leave had violated the employer's leave-request policy. Accordingly, the court dismissed the employee's claim.


Employer Takeaway. FMLA generally requires an employer to inform an employee about FMLA rights if it has reason to believe that FMLA may cover the employee's requested leave. Nonetheless, Branham confirms that many courts will expect an employee to be aware of his or her FMLA rights, and will enforce the FMLA notice requirement less strictly against the employer if the employee has previously exercised his or her FMLA rights.




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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.