Employer’s duty to designate taken leave as FMLA qualifying or not

By | February 7, 2008

Employee sued sheriff in his official capacity claiming that he violated her rights under FMLA by failing to provide her with individualized notice that leave would be counted against her FMLA leave and then transferring her to different job in corrections upon her return to work. Case went to trial and jury awarded employee $16,400 in compensatory back pay and front pay in the amount of $13,128. Sheriff appealed arguing that FMLA regulations requiring employers to provide individualized notice that leave will be counted as FMLA leave are invalid and therefore district court erred in finding that employee did not receive sufficient notice regarding her leave.

Regulation in question – 29 C.F.R. § 825.208(a) provides, “In all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section.” 29 C.F.R. § 825.208(b)(1) provides, “Once the employer has acquired knowledge that the leave is being taken for an FMLA required reason, the employer must promptly (within two business days absent extenuating circumstances) notify the employee that the paid leave is designated and will be counted as FMLA leave.” The notification must be “provided to the employee no less often than the first time in each six-month period that an employee gives notice of the need for FMLA leave.” Id.§ 825.301(c).

Fifth Circuit discussed several related cases on the subject such as

Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002)

Lubke v. City of Arlington, 455 F.3d 489 (5th Cir.2006)

Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135 (3d Cir.2004)

McGregor v. Autozone, Inc., 180 F.3d 1305 (11th Cir.1999)

Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757 (5th Cir.2001)

The Fifth Circuit found that the regulations were valid especially since the employee had to demonstrate how her FMLA rights were interfered with and how she was prejudiced by the employer’s failure to notify her that the leave counted against her FMLA totals before she was entitled to a remedy. In this case, the employee showed prejudice by demonstrating how she would have postponed her surgery to another FMLA period and thus fully exercised her 12 weeks of FMLA leave per year and kept her original job position.

Downey v. Strain, 510 F.3d 534 (CA 5 2007).

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