January 23, 2022

Volume XII, Number 23

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FMLA Interference: Court Finds Defendants’ Motion to Dismiss to Be Premature

In Smith v. School Board for the City of Norfolk, Virginia, et al., No. 2:21-cv-138 (November 5, 2021), the U.S. District Court for the Eastern District of Virginia refused to grant a motion to dismiss to the Norfolk School Board and individual defendants, finding that discovery was necessary to determine whether outreach to the plaintiff office manager while she was on leave under the Family and Medical Leave (FMLA) constituted more than de minimis contact.

The court differentiated Antekeier v. Laboratory Corporation of America, a 2018 decision in which the court granted summary judgment to the defendant. In that case, discovery was complete and the court could evaluate “concrete evidence of the precise number of calls, the length of those calls, and the content discussed therein” when determining whether the contact was de minimis.

Here, the plaintiff, Pamela Smith, claimed that the defendants had repeatedly called her to assist with “financial taskings,” contacted her repeatedly “‘over the course of the day through multiple phone calls,’” and sent her several texts. Smith further claimed that these contacts affected her emotionally and cost her time off.

The court also found that the individual defendants “[were] not entitled to qualified immunity from claims brought directly under the FMLA against them in their individual capacities.” While noting that qualified immunity is an affirmative defense, the court declined to dismiss the case, as there was evidence that the individual defendants had known about the FMLA (for example, one defendant had approved the FMLA leave) and the court needed to determine whether a reasonable person would have known whether their conduct violated the employee’s FMLA rights.

Key Takeaways

Contacting employees while they are on FMLA leave is not without risk, apart from updating them on events in the office or obtaining basic information concerning when they may return. According to the court in Smith, when an employee on leave under the FMLA is asked work-related questions, such as where information is stored or other such inquiries, discovery will likely be necessary to fully develop the record in an ensuing FMLA case.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 334
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About this Author

Lisa Burton, Shareholder
Shareholder

Lisa Stephanian Burton is a shareholder in the Boston office of Ogletree Deakins.  She defends employers in litigation and counsels on labor and employment issues that include wage and hour, discrimination, leaves of absence, and other US state and federal laws and regulations. Lisa also advises employers on business immigration matters. She works frequently with employers in the life sciences, healthcare, technology, retail, manufacturing, employee staffing and financial services industries.

Lisa’s employment litigation practice includes...

617-994-5700
Alfred B. Robinson, Jr., Ogletree Deakins, Employment Compliance Lawyer, recordkeeping requirements attorney
Shareholder

Mr. Robinson has practiced labor and employment law and advised business clients on employment compliance issues for most of his career.  His practice focuses on wage and hour matters and he is Co-Chair of the firm’s Wage and Hour Practice Group.  His wage and hour practice covers minimum wage, overtime, child labor and recordkeeping requirements of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Davis-Bacon Act (DBA), the Service Contract Act (SCA), the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), and a number of...

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