Cautionary Tale: How Sudden Changes to Intermittent FMLA Can Cost You
A January 9 decision by the Seventh Circuit Court of Appeals serves as a vivid reminder that employers must tread with great caution when managing intermittent leave under the Family and Medical Leave Act. As the ruling in Wink v. Miller Compressing Company highlights, making abrupt changes in leave accommodations or providing misinformation about leave rights can have serious consequences.
Tracy Wink, a long-time Miller employee, had an autistic two-year-old son. In July 2011, the company granted Wink intermittent FMLA leave to take the child to medical appointments and therapy. Wink’s mother took care of the toddler three days a week while Wink was at work; for the remaining two days, Wink relied on daycare. But in February 2012, the child was expelled from daycare due to his autism-related aggressive behavior. To cover the childcare gap, Wink asked Miller to allow her to work from home two days a week so she could provide the needed care and work as time allowed. Miller agreed, with the proviso that, if Wink needed to take time off work intermittently during the workday to attend to her son, the time would be counted as intermittent FMLA.
This arrangement continued for almost five months until Miller, facing financial difficulties, terminated all work-from-home arrangements in the summer of 2012. On a Friday in July, Miller’s human resources officer instructed Miller that the change would take effect the following Monday. Thereafter, Wink would be required to work on company premises eight hours a day, five days a week. Wink tearfully protested that it would be impossible to secure alternative care over the weekend. In response, the officer advised – falsely – that FMLA only covers leave for medical appointments and therapy. In fact, Wink was also entitled to take FMLA leave to provide care to her autistic child.
Wink went to the office that Monday and informed the human resources officer that she had been unable to find a caregiver. The reply was that the first time she did not work a full day at the office, the company would consider her a “voluntary quit.” Needing to attend to her son, Wink went home, never to return. She was terminated that same day.
Wink sued, alleging that Miller had both retaliated against her for asserting her right to FMLA leave and interfered with her FMLA rights. After a three-day trial, the jury found for Wink on her retaliation claim but not her claim of interference. Miller appealed the verdict. In an opinion written by Judge Posner, the Seventh Circuit affirmed, finding that the jury had reasonable grounds to find retaliation. Miller had allowed Wink to work from home without any issue for nearly five months and had no compelling reason to fire her. A jury could reasonably infer that Miller was angry because Wink had asked to stay home two days a week and to use intermittent FMLA leave on those two days when she needed time off to provide care for her child.
Miller also sought to overturn the imposition of liquidated damages, which doubled the actual damages award. Liquidated damages are awarded automatically unless the employer proves it acted in good faith. The Seventh Circuit ruled against Miller, persuaded that Miller’s “phony line” that FMLA could be used only for doctor’s appointments and therapy did not demonstrate good faith. As a final matter, the appellate court held that Wink’s failure to win her FMLA interference claim did not warrant reducing the amount of attorneys’ fees she could recover. FMLA retaliation and interference claims are very similar in nature, so that it made sense for Wink’s attorneys to play it safe and assert both. As the separate interference claim added only marginal cost, Wink was entitled to recover all of the fees she had incurred.
The Wink case is but one example of the treacherous waters an employer must navigate when making changes to special intermittent FMLA leave arrangements. The FMLA does not itself grant a right to work from home. But it is not uncommon for employers to allow employees serving as caregivers to use a combination of FMLA leave and telecommuting. When it comes to such arrangements, good communication is key. The terms and conditions should be expressly agreed to and well documented. And once in place, any change must be thoroughly substantiated and implemented with great care.