Court Ruling Clarifies Employers’
FMLA Obligations
Joe Bilby, Attorney | Stoll Keenon Ogden
PLLC
Employers under the jurisdiction of the Family and Medical
Leave Act (FMLA) should take note of a decision made earlier this year which
requires employers to inform employees in writing about the method used to
calculate leave time. In the case of Thom v. American Standard, Inc., 666
F.3d 968 (6th Cir. 2012), an employer that failed to specify how employees’ leave
time would be calculated was held to have violated the FMLA.
FMLA-eligible employees are entitled to a total of 12 work weeks of
job-protected, unpaid leave upon the birth of a child, the placement of a child
in adoption or foster care, learning of a serious health condition, or other
qualified medical and family events.
An employee is eligible to take up to 12 weeks of leave in
each 12-month period. To calculate the 12-month period, employers can use one
of four methods: the calendar year; the company’s fiscal year (or another fixed
method); the backward-counting “rolling” method; or a method that begins the
calculation from the first date when an employee takes leave.
The employer in this case failed to specify which
of the four methods it used to determine the 12-month period until after it had terminated its employee for taking more leave days than
permitted under the rolling method.
The consequences were severe: the employer had to provide
back pay to the employee and pay attorney’s fees totaling more than $200,000, in
addition to adjusting the employee’s termination date for pension and retiree
health care purposes (or an annuity to cover the difference). The court also
ordered the employer to pay additional liquidated damages of more than
$100,000.
With this decision, the Sixth Circuit made clear that employers have an
affirmative duty to inform employees about the method used to calculate FMLA
leave time in advance of the employee’s leave. As a result of this case, FMLA-eligible
employers should take the following three steps to ensure they are in
compliance and reduce the risk of lawsuits:
1. Determine which of the four methods will be used for calculating the
FMLA-mandated 12-month period.
2. Bring the selected calculation method and FMLA policy to the attention of current
employees. The method should also be included in the employee handbook and
stated in the documents provided to employees taking FMLA leave.
3. In the case of an employee who may have taken FMLA leave without receiving a
clear statement about the company’s chosen method of calculation, work with the
employee to resolve any differences. When in dispute or doubt, use the method
which is most beneficial to the employee.
Joe
Bilby is an associate with Stoll Keenon Ogden PLLC. He works in the Labor,
Employment & Employee Benefit practice in Louisville. He is a veteran of the U.S. Marine Corps.
joe.bilby@skofirm.com | 502.333.6000 | skofirm.com
