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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 seven 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 31 attorneys, senior benefits consultant and four 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 2017, 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 Avenue, N.W.

Suite 810

Washington, D.C. 20006



Tel: (847) 990-9034

Fax: (847) 557-1312

190 South LaSalle Street

Suite 2100

Chicago, IL 60603



Palm Beach Gardens 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
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 







Employee's FMLA Retaliation Claim May Proceed to Trial Due to Close Timing of FMLA Request and Termination 


February 7, 2018




A federal district court, in Walpool v. Frymaster, LLC, has allowed a terminated employee's Family and Medical Leave Act ("FMLA") retaliation claim to proceed to trial due to the close proximity between his request for FMLA leave and his termination.


Background. The plaintiff had been employed for 21 years when he requested intermittent FMLA leave to take his wife, who had recently suffered a stroke, to physical therapy. Although the employer approved the plaintiff's request, he was terminated four days into the intermittent leave for being absent without notice.


In the wake of his termination, the plaintiff filed suit against his former employer, alleging that it had interfered with his previously approved FMLA leave and terminated him in retaliation for exercising his right to such leave. In response, the employer requested that the matter be dismissed because the employee had been terminated because he had failed to give proper notice of his intent to take leave on the specific day in question.


Law. The law allows FMLA-eligible employees to take temporary leave for medical reasons, for the birth or adoption of a child, and for the care of a spouse, child, or parent who has a serious health condition without the risk of losing employment.


Under FMLA, an employer may require that an employee follow its usual and customary practices for requesting leave. Discipline resulting from the employer's failure to do so typically does not constitute interference with FMLA rights unless the employee can show unusual circumstances. Examples of interfering with the exercise of an employee's FMLA right include refusing to authorize FMLA leave and discouraging an employee from using such leave.


District Court. The court reviewed the record and determined that the employee had provided evidence in the form of paperwork indicating that he: (i) complied with all employee obligation under FMLA; (ii) was approved for leave; and (iii) complied with the FMLA policy contained in the employer's employee handbook. Accordingly, the court ruled that the employee had sufficiently shown that he gave proper notice that he would be absent on the day in question. Therefore, the court denied the employer's request to dismiss the claim before trial.


The court further determined that the close timing between the employee's FMLA request and his termination was enough to establish a causal link between the two events. As a result, the court also allowed the employee's retaliation claim to proceed to trial.


Employer Takeaway. Establishing adequate notice of an FMLA-protected absence is an easy burden for employees to meet. Therefore, before taking any adverse action against an employee who has requested FMLA leave, employers must be certain that that the employee has not previously provided proper notice.






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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.