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Failure to Provide FMLA Notice Dooms Employer’s Effort to Terminate Employee for Excessive Use of Leave

By on August 8, 2013 in FMLA with 0 Comments

The case of Young v. Wackenhut Corporation, 2013 U.S. Dist. LEXIS 14414 (D. N.J. Feb. 1, 2013) demonstrates the importance of providing required FMLA notice to eligible employees.

Jacqueline Young, a Payroll Specialist, advised her employer, The Wackenhut Corporation (hereinafter “TWC”), of her interest in maternity and FMLA leave in November 2008, when she first found out that she was pregnant.  On April 30, 2009, she sent the HR Director an email regarding her “maternity and FMLA leave.”  She supplied the HR Director with leave of absence forms and a doctor’s note putting her out of work.  She went out on maternity leave on June 12, 2009.

TWC did not provide any notices as required under the FMLA.  This turned out to be the key fact in the case.  Specifically, the company did not provide the FMLA Eligibility Notice, the Rights and Responsibility Notice, and the Designation Notice.  Instead after months of leave, company representatives called Young on November 30, 2009 and told her that her leave had expired and that she needed to return to work.  This was the first time that TWC reached Young, although Young had called and emailed the company before this date.  The company also told Young that it would need a return-to-work note from her doctor.  On December 1, 2009, the company terminated Young’s employment for failing to provide a return-to-work note and for exhausting her FMLA leave.

Young sued under the FMLA and argued that the company violated her rights under the FMLA because she was never informed that she had to return to work by November 19, 2009, nor provide a doctor’s note.  The District Court first noted that the company failed to provide Young with “individualized notice” as required by the FMLA.  It rejected the company’s argument that an employer’s inclusion of a summary of an employee’s rights in an employee manual constitutes “sufficient notice.”Even though all employees had access to an employee handbook both online and at the HR office, the court held 29 C.F.R. 825.300 specifically requires compliance with the Eligibility Notice, Rights and Responsibility Notice and Designation Notice. The employer is also required to advise on designation whether it will require a return-to-work note.

TWC argued that even if it had not complied with FMLA notices, plaintiff could not prove any real prejudice to her.  The company maintained that Young took more than her allowed 12 weeks of leave and should not be able to advance an FMLA claim.  Young countered that had she gotten the appropriate notices up front, she would have known her expected return-to-work date and she could have avoided termination.  The court said, “TWC’s argument ignores the fact that the November 30, 2009 telephone call between Plaintiff and Winter Lemon and Doris Wallace was the first time Plaintiff was formally told by TWC that her FMLA leave time had been exhausted.”

The Court relied on prior New Jersey case law, particularly Conoshenti v. Public Serv. Elec. & Gas Co.,365 F.3d 135, 143 (3d Cir. 2004) for the proposition that an employee has a right to make an informed decision about structuring leave time and planning recovery so as to preserve job protection.

This case is consistent with recent FMLA amendments which allow employers to retroactively designate FMLA time, but only where such designation does not prejudice the rights of the employee.  In this case, the employer’s failure to provide individualized notice created the initial problem; the subsequent attempt by the employer to retroactively designate time off on maternity leave failed since the employee had a strong argument that had she received notice promptly, she could have structured her leave so as to return to work by November 19, 2009.  Most importantly, the case underscores why it is so crucial for employers to utilize appropriate FMLA notice forms.  Having an FMLA policy in an employee manual and online is wise but it cannot substitute for specific notice requirements.

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John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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