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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7012
Experience:  Significant experience in all areas of employment law.
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Hello, We asked you about an issue in February, and now

Customer Question

Hello,

We asked you about an issue in February, and now have a follow up.

We had an employee go on unpaid leave on January 25, 2012. At that point, she had worked 1250 hours, but had not been with us for a year. She had two doctors provide her notes in February, one of which said she would be unable to work until May 8, the other of which said she would be disabled indefinitely.

She called us at the end of March, and said that she couldn’t work, and begged for continued insurance. Feeling sorry for her, but having no desire to ever hire her back, we continued her insurance.

On April 18 her one year mark passed. She worked 1250 in that year.

On April 24 we sent her a letter saying her job and insurance would terminate on May 18. The notice simply said that her job and insurance would end. Nothing else.

She sent us a note shortly thereafter asking for her HR file.

Upon reading about FMLA, we are now worried and confused:

1. It appears that, by keeping her on as an unpaid employee past the 12 month mark, we unintentionally became subject to FMLA. This is our understanding based on the following statement from a Gov site:
a. If an employee is maintained on the payroll for any part of a week, the week counts as a week of employment. This includes any periods of paid or unpaid leave (e.g., sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.)
2. She never sent us notice of being sick after her one year mark passed. However, we are assuming that the doctors notes and her prior notice from before the FMLA period began would be deemed sufficient. Is that true?
3. If that is true, we are wondering:
a. Is she now on FMLA qualifying leave?
i. Were we required to send her notice within 5 days of her 12 month anniversary that her leave was suddenly considered FMLA?
ii. If so, what should we do now? Can we get it retroactively to the date of her 12 month mark, or is it better just to have it start as of the date we send her notice?
1. It’s not a big deal to go with the latter, as the insurance is not expensive.
b. Do we need to rescind the termination notice? Obviously, if she is on FMLA we cannot terminate her as of May 18.
i. Are we exposed to any legal liability because we sent her the notice of termination? Will rescinding the notice eliminate, or largely eliminate liability?

Are there any California-specific issues here?

Please send as much information as you can.

Thank you!!
James
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your questions.

I plan to provide you with a very detailed response, but first I have one very important question for you. Why were you letting this employee go?

Please let me know, as the answer to this question is quite important in determining the rights and responsibilities of an employer in your circumstance.

I look forward to assisting you.
Customer: replied 2 years ago.
Well, her performance was quite low. Additionally, she had indicated that she didn't like the position. That being said, we were and are hoping and expecting that she simply won't come back from her leave. I think the odds are pretty slim she'll return.

We have a moderate amount of documentation regarding her performance and notifications regarding her low performance. She was not, however, put on warning.

Thanks.
Expert:  Patrick, Esq. replied 2 years ago.
James,

Thank you for your patience in allowing me time to respond. Some family obligations required my attention for the past couple hours.

I will do my best to address your specific questions one by one, but first allow me to clarify something right off the bat. The text of the FMLA prohibits discrimination because of the exercise of FMLA rights. It does not provide absolute job protection, and in order for a plaintiff to have a valid cause of action for wrongful termination, he or she must demonstrate by a preponderance of the evidence a "causal link" between their FMLA leave and termination. See Richardson v. Monitronics International, Inc. 434 F.3d 327 (2005).

You can read the Richardson opinion here for a more detailed explanation of the prima facia elements of an FMLA claim for wrongful termination: http://law.justia.com/cases/federal/appellate-courts/F3/434/327/516033/

If an employer has documentation of an employee's performance issues, even if the employee was never formally warned or reprimanded for misconduct, that documentation may be sufficient to rebut allegations that the employee's FMLA leave was a factor in their termination.

Now, let me address your questions:

1. It appears that, by keeping her on as an unpaid employee past the 12 month mark, we unintentionally became subject to FMLA.

This is likely true. Specifically, section 825.105 of the FMLA states:

"(c) Employees on paid or unpaid leave, including FMLA leave, leaves of absence, disciplinary suspension, etc. , are counted as long as the employer has a reasonable expectation that the employee will later return to active employment."

So, as long as an employer in your circumstance had a "reasonable expectation" this employee would return, then her unpaid leave would likely count toward her 12 months of employment necessary to establish FMLA eligibility.

2. She never sent us notice of being sick after her one year mark passed. However, we are assuming that the doctors notes and her prior notice from before the FMLA period began would be deemed sufficient. Is that true?

FMLA leave is a formal designation that requires the submission of a formal FMLA application and approval from the FMLA board. Unless these steps are taken an employee will not be considered to be on FMLA leave with two notable exceptions.

Relevant to your situation, an exception to the above arises where "an employee requests FMLA leave, or when the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason." In such case, as you correctly have noted, an employer must notify their employee within 5 days of their right to take FMLA leave, absent extenuating circumstance. (See section 825.300(b) here: http://www.law.cornell.edu/cfr/text/29/825.300)

In a circumstance such as yours, the obligation to provide notice of FMLA rights would arise upon the employee completing 12 months of employment (remember, this includes unpaid leave).

3. If that is true, we are wondering:
a. Is she now on FMLA qualifying leave?


If an employer failed to provide notice of FMLA rights, an employee who would otherwise have qualified for FMLA leave would likely be entitled to the protections of the Act.

i. Were we required to send her notice within 5 days of her 12 month anniversary that her leave was suddenly considered FMLA?

Not exactly. Since FMLA leave is not automatic (as noted above), an employer would need to send notice to the employee that she may be entitled to apply for FMLA designated leave.

ii. If so, what should we do now? Can we get it retroactively to the date of her 12 month mark, or is it better just to have it start as of the date we send her notice?

The FMLA provides the following as the consequence for an employer's failure to provide notice of FMLA rights to an employee who has become eligible:

Failure to follow the notice requirements set forth in this section may constitute an interference with, restraint, or denial of the exercise of an employee's FMLA rights. An employer may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered (see § 825.400(c) ).

As should be apparent from that section, an employer is not automatically liable to pay damages merely by failing to provide notice in accordance with section 825.300(b). The employee must have actually sustained some form of damage as a result of the failure to provide notice.

1. It’s not a big deal to go with the latter, as the insurance is not expensive.
b. Do we need to rescind the termination notice? Obviously, if she is on FMLA we cannot terminate her as of May 18.

If an employer in your circumstance can demonstrate that the termination notice was given for reasons unrelated to the employee's FMLA leave or eligibility, it would not be necessary to rescind the termination notice because termination under such circumstances would be lawful, as I noted above. If an employer cannot demonstrate that termination was for unrelated reasons, the employer would need to rescind the termination notice so as not to be in violation of FMLA.

Since an employee would need to sustain actual damages to have a valid cause of action for violation of their FMLA rights, an employee who was terminated while eligible for FMLA leave but then rehired before any harm was incurred would not have a valid legal claim, typically speaking.

i. Are we exposed to any legal liability because we sent her the notice of termination? Will rescinding the notice eliminate, or largely eliminate liability?

See above.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My absolute greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Also, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

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