The U.S. Court of Appeals
for the Third Circuit has issued a decision that will make it more
difficult for employers to defend against lawsuits brought under the
Family and Medical Leave Act (the "FMLA"). In Lupyan v.
Corinthian Colleges, Inc., the Third Circuit ruled that: (i) an
employer's failure to provide notice to an employee that her leave
would be characterized as leave under the FMLA could constitute
interference with FMLA rights, and (ii) an employer's refusal to
reinstate an employee after FMLA leave may constitute retaliation,
even when the employee does not return to work until after the
expiration of the 12-week FMLA leave period.
regulations require FMLA-covered employers to provide a general
notice; a rights and responsibilities notice; and an FMLA designation
notice, to employees. Employers meet the general notice requirement
by posting a notice of FMLA rights at the workplace. To satisfy the
rights and responsibilities notice, employers can include information
about the employer's FMLA policies in any handbook or similar
publication distributed to employees. Finally, the employer must
provide an employee with a written notice when a particular absence
is determined to be FMLA leave.
The FMLA prohibits
employers from discriminating or retaliating against an employee for
exercising or attempting to exercise FMLA rights.
Facts. In Lupyan,the plaintiff was an instructor at the
defendant's college. During the relevant period, the plaintiff had to
take a personal leave of absence to deal with health issues.
Accordingly, she provided complete FMLA certification to the
defendant to support her need for leave. In response, the defendant
classified her leave as FMLA leave and sent the plaintiff the
appropriate FMLA designation notice via regular mail.
After 14 weeks of leave,
the plaintiff was cleared by her doctor to return to work. When she
notified the defendant of her intent to return to work, she was told
that she had been terminated for failing to return to work after the
expiration of her 12 weeks' FMLA leave and because of low enrollment.
The plaintiff claimed that this was the first time she had been
notified that her leave had been designated as FMLA leave and that
she never received the defendant's FMLA notice.
The plaintiff sued,
alleging that the defendant had: (i) interfered with her FMLA rights
by failing to provide her with the required FMLA notices, and (ii)
retaliated against her for invoking FMLA rights.
Interference Claim. The
plaintiff alleged that the defendant's failure to notify her that the
leave was designated as FMLA leave constituted an interference with
her rights. In particular, she claimed to be unaware that she had to
return to work within 12 weeks and that she would have managed her
leave differently if she had received proper notice. The defendant
contended that the plaintiff had been given notice of her FMLA rights
through the distribution of its employee handbook's general summary
of the FMLA and the FMLA notice it had sent to her.
The Third Circuit found
that the defendant's actions were insufficient to prove that it had
furnished the required individual notice at the time of the
plaintiff's leave. Specifically, the court rejected the defendant's
contention that its letter met the notice requirements because there
was no proof of its receipt. The court noted that the letter was not
sent by certified mail or another method that would provide evidence
Retaliation Claim. The
Third Circuit ruled that an employee can bring a retaliation claim
even where the leave at issue extends beyond the 12 weeks provided
under the FMLA. The court noted that a retaliation claim's focus is
on the defendant's actions during and after the leave. Because the
defendant provided conflicting reasons for the plaintiff's
termination and the termination occurred in close proximity to the
conclusion of her FMLA leave, the court determined that the plaintiff
should have the chance to prove she had been terminated in
retaliation for exercising her FMLA rights.
Action Steps for Employers. In
the wake of Lupyan, employers should review their FMLA
procedures to ensure that it can be verified that employees promptly
receive the required FMLA notices when the leave has been designated
as FMLA leave. This notice should clearly state the dates of the
leave and the required date of return.