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The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 22 attorneys engaged exclusively in employee benefits, estate planning and employment law. Six of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.






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The Wagner Law Group


  Integrity | Excellence


Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418


San Francisco Office

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

Suite 904

San Francisco, CA 94104







September 11, 2014


 Health and Welfare Law Alert




Court Ruling Makes It More Difficult for Employers to Defend Against FMLA Lawsuits 




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.


Law. DOL 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 of delivery.


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.





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