November 29, 2022

Volume XII, Number 333

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November 28, 2022

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Employer Violates FMLA for Failure to Provide Calculation of When Leave Expires, Court Rules

In a case reminding employers of their obligation to notify employees about their Family and Medical Leave Act rights, the District Court of New Jersey has ruled that an employer violated the FMLA when it terminated an employee without providing her notice that her modified return-to-work date exceeded her available leave. Ross v. Youth Consultation Service, Inc., No. 02229 (D.N.J. Dec. 29, 2016).

Background

In September 2012, Janet Ross requested FMLA leave, initially stating on her designation form that her return-to-work date was “unknown.” Within weeks of submitting her form, Ross provided an updated return-to-work date of April 2013 — well beyond the 12-week maximum leave available under the FMLA. The extended leave was required because Ross had scheduled two surgeries, one in November and the second in January.

When Ross informed her employer about her modified return-to-work date, her employer did not provide her with an updated calculation of leave or inform her when her leave would expire. After Ross exhausted her FMLA leave, her employer to inform her that she exceeded the amount of available time and terminated her.

Ross filed a lawsuit alleging her former employer did not provide her with proper notice after she informed it about a change in her status.

Proper Notice

The district court agreed with Ross. It noted that an employer has the burden of calculating an employee’s leave allowance and informing the employee if a change in status alters the available leave. Critically, the court said, the employer did not tell Ross what specific amount of time was available to her, did not provide a change-in-designation notice after receiving the doctor’s note, and did not communicate the “critical information” that the FMLA would not protect all of the requested leave.

Status Change

In the case of a status change, an employer should inform the employee of any remaining available leave and communicate any consequences of the updated designation. Moreover, the notice should provide sufficient information for an employee to make adequately informed decisions about how to structure leave. Although Ross’s leave request would have exceeded FMLA protections and she received 12 weeks of protected leave, Ross alleged she could have scheduled her surgeries to allow her to return to work within the required time. The court agreed with Ross’s allegation.

Lessons

Notice and process are critical in administering leave. Prudent employers must review carefully whether proper notice is provided before terminating an individual for exhaustion of available leave or retroactively designating leave.

Jackson Lewis P.C. © 2022National Law Review, Volume VII, Number 17
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About this Author

Jeffery  J Corradino, Labor, employment, Attorney, Jackson Lewis Law Firm
Principal

Jeffrey J. Corradino is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He has counseled clients in virtually every area of labor and employment law for over 20 years.

Mr. Corradino has extensive experience representing employers in public and private sector employment related litigation, collective bargaining negotiations, representation cases, arbitrations and National Labor Relations Board matters. Mr. Corradino is a frequent speaker on human resource and legal topics, including Wage and Hour;...

973-451-6311
Associate

Benjamin L. Rouder is an Associate in the Monmouth County, New Jersey, office of Jackson Lewis P.C. His practice focuses on representing management in employment litigation matters.

While attending law school, Mr. Rouder was an Associate Editor of the Fordham Journal of Corporate & Financial Law and received the Archibald R. Murray Public Service Award, magna cum laude, for his volunteer work. During his undergraduate studies, Mr. Rouder was selected for the Scholar Honors Program and received the Tony Kornheiser Journalism Scholarship for...

732-945-6025
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