Friday, June 10, 2011

Employee Wins FMLA "Key Employee" Exemption Case on Summary Judgment - COTW #44

Summary judgment is a danger zone for employee lawsuits. This Case of the Week entails an employee actually winning on liability on summary judgment for her FMLA claim. And, I don't just mean surviving the employer's motion, I mean having her own motion granted. The case is Neel v. Mid-Atlantic of Fairfield, LLC, No. JKB-10-405 (D. Md. April 20, 2011).

The employee was out on FMLA leave, and starting to make plans for her return. Then, the employer informed her that her position had been filled, there were no openings, and her employment had been terminated. Ordinarily, employers must restore employees to their prior positions or an equivalent upon return from FMLA. Easy case for the employee, right?

Not so fast! The FMLA provides a "key employee" exemption where:
(A) such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer;
(B) the employer notifies the employee of the intent of the employer to deny restoration on such basis at the time the employer determines that such injury would occur; and
(C) in any case in which the leave has commenced, the employee elects not to return to employment after receiving such notice.
29 U.S.C. § 2614(b)(1). Here, the employee did not deny she was a key employee... so, easy win for the employer, right?

Not so fast! FMLA regulations provide:
As soon as an employer makes a good faith determination . . . the employer shall notify the employee in writing of its determination . . . that it intends to deny restoration to employment on completion of the FMLA leave . . . . This notice must explain the basis for the employer's finding that substantial and grievous economic injury will result, and, if leave has commenced, must provide the employee a reasonable time in which to return to work, taking into account the circumstances, such as the length of the leave and the urgency of the need for the employee to return.
29 C.F.R. § 825.219(b). So, what happens when an employer fails to comply with the regulations? This:
The Court concludes that [the employer] interfered with [the employee's] FMLA rights by failing to provide her proper notice of its unambiguous intent to deny restoration, by failing to explain to her the basis for its determination that restoration would cause [the employer] substantial and grievous economic injury to its operations, and by failing to offer her a reasonable time in which to return to work after notification of its intent to deny restoration.
In short, a rare summary judgment victory for an employee. This one's not done though. Next up: further proceedings to determine remedies.

HT: Eric M. Leppo, Employer Fails to Establish Dispute of Fact in Former Employee’s Claim Under Family and Medical Leave Act.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

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