IS IT FMLA INTERFERENCE FOR AN EMPLOYER TO REQUIRE WORK FROM AN EMPLOYEE WHILE ON MATERNITY LEAVE?

Often, an employer can be placed in a difficult position when a key employee finds it necessary to take a leave of absence under the Family & Medical Leave Act (FMLA).  Someone at the office may need to contact the employee in order to locate a file, ask about the status of a matter, or seek advice on a pending issue.  By so doing, does the employer open itself up to potential legal exposure under the FMLA?  In Evans v. Books-A-Million (August 8, 2014), the U.S. Court of Appeals for the Eleventh Circuit* evaluated this question in the context of an employee’s maternity leave. 

In the Evans case, the plaintiff served as the Payroll and Insurance Manager for her employer.  At the time that she began her maternity leave, she was involved in the implementation of a new payroll system which would “go live” during her maternity leave.  

Even prior to beginning her leave of absence, the plaintiff was provided with a new laptop computer which would enable her to work from home after the delivery.  Her supervisor, moreover, told her that she “really needed” the plaintiff to continue to work on the new payroll program, the success of which would account for 50% of the plaintiff’s annual bonus.  Almost immediately after giving birth, the plaintiff began answering work-related calls and e-mails from the company, and she was provided with additional work assignments during her leave of absence.  In the end, the plaintiff stated, she felt that she had “no choice” but to continue to work from home after the birth of her child. 

Upon returning from maternity leave, the plaintiff felt that her supervisor’s attitude toward her had grown cold and hostile.  Less than a month after her return, moreover, the plaintiff was informed that she was being reassigned from her position as Payroll and Insurance Manager to the position of Risk Manager.  Having spent her entire career in the payroll field, plaintiff made it known that she was not interested in assuming a risk management position, as she had never worked in that area previously.  However, she was told to either accept the new position or to resign from employment, and when she indicated that she would not accept the Risk Manager position, she was terminated from employment. 

The plaintiff then filed a number of claims, including one for FMLA interference. 

The company pointed out that, because the plaintiff was paid her full salary while she was on FMLA leave, she had suffered no “legal damages.”  As a result, the trial court dismissed her claim for FMLA interference. 

On appeal, however, the U.S. Court of Appeals for the Eleventh Circuit disagreed, reinstating the plaintiff’s claim and allowing the case to proceed to trial.  In addition to actual damages for lost pay, the court noted, the FMLA provides for “such equitable relief as may be appropriate, including employment, reinstatement, and promotion.”  As such, it was necessary to evaluate whether the plaintiff was otherwise prejudiced by FMLA interference in this case.  As the court noted, “it seems plain to us that if an employer coerces an employee to work during her intended FMLA leave period and, subsequently, reassigns her based upon her allegedly poor performance during that period, the employee may well have been harmed by the employee’s FMLA violation.”  In such a circumstance, the court concluded, the plaintiff might be entitled to reinstatement, front pay, or other damages. 

Admittedly, the Evans case presented an egregious example of abusing an employee’s time while away from work on maternity leave.  Here, it appears clear that the company wanted the employee to continue working as much as possible, notwithstanding her need for a leave of absence under the FMLA.  In such a circumstance, it appears clear that the company interfered with her right to an FMLA-related leave of absence; if anything, the Evans case simply stands for the proposition that paying an employee for his/her time away from work will not save the employer from a claim for FMLA interference. 

Obviously, this situation is far different from the more routine case in which, during an employee’s leave of absence, a handful of unobtrusive calls are made to the employee to ask quick questions about the location of files, etc.  In all such cases, however, employers should be careful not to overstep their bounds and improperly intrude on an employee’s leave of absence.  In addition, employers should be savvy in evaluating whether a particular employee might object to even a few contacts from the company during his/her absence. 

Finally, it should be noted that the Evans case should have also included a claim for FMLA retaliation, noting that the plaintiff was almost immediately upon her return to work subjected to cold and hostile treatment, transferred to a less desirable position, and ultimately terminated from employment.  Under the circumstances presented here, one would think that Books-A-Million would have had a difficult time defending against such a claim.  

*  The Eleventh Circuit is the federal appeals court for the states of Alabama, Florida, and Georgia.

If you have questions about this Employment Law Alert or wish to discuss the impact of this decision upon your business, please do not hesitate to contact Maury Nicely at Evans Harrison Hackett PLLC, 423/648-7851 or mnicely@ehhlaw.com.