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Important, employee friendly, FMLA decision issued by the Second Circuit Court of Appeals.

Posted by Giovanna A. D'Orazio | Jul 21, 2017 | 0 Comments

On July 19, 2017, the Second Circuit Court of Appeals in New York issued an important – and employee-friendly – decision interpreting the retaliation provisions of the Family and Medical Leave Act (“FMLA”).  The decision can be found here.  

By way of background, the FMLA is the federal statute that allows eligible employees (of public employers and private employers with 50 or more employees) to take 12 weeks of unpaid leave for various reasons including the birth of a child, one's own serious health condition and to care for a close family member with a serious health condition.  There are two potential claims for violations of the FMLA: interference and retaliation.  Interference is when an employer quite literally interferes with your exercise of your FMLA rights.  This could include denying leave when the employee is entitled to it, failing to provide notice of FMLA rights that results in harm to the employee or discouraging an employee from using leave. 

Retaliation typically references the scenario where an employer takes adverse action against an employee for making a complaint that his or her rights are being violated.   So, you complain to your boss that you feel your FMLA rights are being interfered with, and then you get fired.  That is the usual scenario.  When an employee alleges that he or she has been fired because of a complaint, courts typically apply a “but for” causation test to determine whether the termination was illegal. What does that mean? For there to be a violation, the employee must prove that he or she would not have been fired “but for” the complaint.  This is a relatively difficult standard to meet.

The new Second Circuit decision addresses a different retaliation scenario that has posed confusion for courts and employment lawyers alike.  That scenario is where an employer takes adverse action against an employee, not for complaining, but for exercising FMLA rights.  So, you take leave, and then you are fired because of it.  That is not technically “interference” because you took the leave you were entitled to.  It also is not the typical retaliation scenario because you did not complain.  So, the open question was: if this is the type of FMLA violation you are alleging, is it still considered to be “retaliation”? And, if so, do you have to prove that the taking of leave was the “but for” cause of your termination, or could it have been only a “motivating factor.”  “Motivating factor” is an easier standard to meet.

In the decision, the Second Circuit found that when this is the type of retaliation that is alleged, an employee must only prove that the exercise of the FMLA rights – such as the taking of the leave – was a “motivating factor” for the termination or the adverse employment decision.  This means there could be other reasons for the termination as well, but that the taking of leave was a “negative factor” in the decision.

While not the sexiest topic in the world, this is actually a BIG WIN for employees.  Not only does it clarify an area of confusion, but this is a significantly lesser burden for employees and makes it easier to prove an FMLA violation at trial.

The Second Circuit has issued various employee-friendly decisions under the FMLA in recent months.  If you believe you have suffered an adverse employment action for taking leave, asking for leave, or otherwise exercising your FMLA rights, or if you believe you were denied benefits to which you were entitled, you should contact an experienced employment attorney who is following the latest developments of the law and can determine whether your FMLA rights have been violated. 

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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